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The NLRA Applies to Non-Unionized Employers

Posted on March 26, 2018

Employers must recognize that regulations under the National Labor Relations Act (NLRA) do not always apply exclusively to unionized workforces.

Both unionized and non-unionized employers should become familiar with the NLRA and ensure that their communication policies are compliant. 

The NLRA protects the rights of employees to engage in activity that is undertaken with respect to wages and working conditions, or for mutual aid or protection in the workplace. 

The National Labor Relations Board (NLRB), which generally enforces the NLRA, has become increasingly active in issuing rules and guidance that affect many employers in non-unionized workplaces. The risk to the employer is that it may enact policies or procedures that violate the NLRA, subjecting the employer to complaints, actions, fines and penalties from the NLRB.

Company communications that may be covered by the NLRA include e-mails, bulletin board materials, door-to-door solicitations, bumper stickers on employee vehicles in parking lots, T-shirts and pins, employee conversations, literary distributions, and company intranets. This list is not all-inclusive, but it is important to understand how broad the NLRA can be.

The NLRB has stated that policies prohibiting use of company e-mails and bulletin boards for non-job-related solicitations were enforceable. Employers must ensure that all e-mail and bulletin board policies must be uniformly enforced and may not specifically target union-related communications. 

Other types of solicitations and distributions, however, require a different set of rules. When it comes to non-email and non-bulletin board solicitations, such as in-person solicitations, the NLRA allows employer policies prohibiting such during working hours. However, union solicitations in particular must be permitted during non-working hours, even in work areas.

Then, under somewhat different standards, distributions of leaflets or other written material, which pose safety and littering concerns, may be prohibited during work hours and in work areas, but must be allowed during non-work time in non-working areas.

The NLRB has ruled against policies that prohibit wage discussions among employees, whether unionized or non-unionized, on the basis its considered a “protected concerted activity.” 

The pervasive use of social media has led to new Board rulings in connection with protected concerted activity in the context of social media postings and communications.

The NLRB found that an employer engaged in an unfair labor practice when it fired five employees who had posted comments on Facebook regarding poor job performance previously expressed by one of their coworkers. The NLRB held that the discharged employees were engaged in protected concerted activity. In fact, the Board found that this was a textbook example of concerted activity, even though the activity that took place was online. One employee reached out to her coworkers for assistance through Facebook regarding job performance and staffing issues in anticipation of a meeting with a manager. Thus, this activity, even through the internet, constituted concerted activity, as it related to working conditions. Similarly, the Board has found that Facebook postings protesting supervisory actions can constitute protected concerted activity.

In other rulings, the NLRB has also been asked to review blogging and internet posting policies of nonunion employers. The Board has found that blanket prohibitions on criticizing an employer violate the NLRA because it would prohibit employees from engaging in certain protected concerted activity.

The Board has found in other cases, however, that in order to be protected under the NLRA, this type of online activity must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him or herself. Thus, Facebook postings, for example, that simply air individual gripes would not be considered concerted.

These are the primary ways in which the NLRA can apply to the private nonunion workplace. Generally speaking, what employers should keep in mind is that whenever employees engage in concerted activity that addresses wages and/or working conditions, there is a likelihood that such behavior is protected by the NLRA.

Lauren Sims is the article’s author and the Director of Human Resources.

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