Ignoring it Doesn’t Make it Go Away: What Non-Union Employers need to know about the NLRA

Steve Gifford 60-Second SPHR, Employee Communications, Steve Gifford

Union membership accounts for less than 20% of the current American workforce, with less than 10% of the private workforce.  HR professionals tend to divide into a small group of generalists who eat, breathe, and live collective bargaining, and a much larger portion of us who simply thank our lucky stars that we don’t have to deal with that level of confrontation.  We know we have to pay attention to Title VII, the ADA-AA, the — USERRA, the FLMA, and the FLSA, among many others.  However, we tend to regard the National Labor Relations Act (NLRA) as something that only those poor souls who work in “labor relations” need to worry about.

Unfortunately, we’re wrong.  The NLRA applies to your workplace whether you want it to or not.

The first and most straightforward application of the NLRA is in organizing.  At any point, your employees could sign petitions and force a union election in your workplace.  There are people who specialize in “union avoidance” who can help you with one of these fights, and if the union election surprises you, you probably should.  There are a remarkable number of ways that your managers can make an already painful election process exponentially worse.  The manager who says, “You know, if this place goes union, we’ll just shut the plant down and move to North Carolina” gets you into a lot more trouble now than in the past.

But the NLRA applies even if there’s no union organizing anywhere on the horizon.  Specifically, Section 7 of the National Labor Relations Act gives employees the right to unionize, but also the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”.

“Concerted Activities.”  That’s the phrase that gets your non-union company.  If one of your employees complains about her supervisor and stops coming to work, its job abandonment.  If three employees complain about their supervisor and stop coming to work, it’s concerted action.  Fire them for job abandonment, and the National Labor Relations Board will make you hire them back.

Concerted activities are also why you can’t punish your employees for telling another employee how much they make, or for what they post on Facebook.  It is why the NLRB has weighed in on your social media policies, and why even some of your email policies may not pass muster.  Your employees have the right to talk to each other, the right to complain, and if they work together, the right to really make things interesting for a non-union employer.

Note 1: The author isn’t an attorney, doesn’t pretend to be one, and is highly skeptical of any HR professional that bases their entire employee relations strategy on what they read on FOT.  Ask a real lawyer before making any major life decisions.

Note 2: After much prodding from Meredith, you can now follow the author on Twitter at @BaghdadMBA.