The National Labor Relations Act (NLRA) applies to all employers affecting commerce and to all of their employees, not only to unionized employers and employees who are members of unions or who are attempting to organize a union. The prohibitions of the NLRA are not well known by non-union Employers.

I. Violations of Section 7 of the NLRA

A non-union employer, at a time when there is no union activity even contemplated by its employees, could violate the law by:

1. Discharging a group of employees who walk off the job, claiming it was too cold to work in the plant.

2. Disciplining a sales representative for complaining about a change in the commission plan presented by a vice president during a meeting with all sales representatives.

3. Disciplining an employee who spoke to other employees about her compensation, in violation of the employer's written policy prohibiting such communications.

4. Disciplining an employee who complained about the employer's lunch hour policy on her own, without consulting her coworkers.

5. Discharging an employee for using obscenities when complaining about not receiving shift differential pay.

6. Entering into a separation agreement with an employee, where the employee receives consideration for agreeing to refrain from any pro-union activities.

These six disciplinary actions have been interpreted as violating the law due to a phrase in Section 7 of the NLRA that has been misunderstood for years:

"Section 7 Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . ."

Every employer understands that employees have the right to form, join, or assist labor organizations and to bargain collectively. But, the highlighted phrase above: "to engage in other concerted activities...for other mutual aid or protection" has been interpreted in many cases to protect an individual employee in a non-union setting, who complains about working conditions, even when he or she is not elected, appointed, or authorized to be a spokesperson by any fellow employees.

In each previous example the individuals, or groups of employees involved could be deemed to be engaged in concerted activity for mutual aid and protection and, therefore, protected by Section 7.

1. The non-union employees who walked off the job, claiming it was too cold to work in the plant, were engaged in a strike to protest their working conditions, which was concerted activity. Non-union employees actually have more of a right to strike than most union employees because unionized employees are generally working under collective bargaining contracts, which contain "No Strike" clauses. Most non-union employees and many of their employers are unaware of the ability of a non-union group of employees to strike. However, a strike over wages, working conditions, or even the discipline of a co-worker, is clearly protected under Section 7.

2. The complaints by a sales representative about a change in the commission plan presented by management during a sales meeting, may be one person's action. But the action occurred in front of other employees, and regarded a condition that affects other employees. Therefore, it is concerted action protected by Section 7.

3. Disciplining an employee who spoke to other employees about her compensation in violation of an employer's written policy violates Section 7. Such a policy prohibiting employees from discussing their wages, or other compensation issues, precludes them from exercising their Section 7 right to engage in concerted activities to attempt to increase or equalize their compensation.

4. An employee who complained about the lunch hour policy on her own, without consulting her co-workers, may not be taking an action in front of other employees, at the request of other employees, or even after consultation with other employees. But it is a complaint about wages, which affects other employees, and, therefore, would be protected by Section 7.

5. An employee who uses obscenities when questioning a supervisor about not receiving shift differential pay, may not lose the protection of Section 7 unless the workplace has a strictly enforced policy regarding profanity or the profanity was extreme. In making the determination of whether an employee loses the protection of the Act due to inappropriate behavior, the NLRB considers these four factors:

1. The place of the discussion;

2. The subject matter of the discussion;

3. The nature of the employee's outburst; and

4. Whether the outburst was, in any way, provoked by an employer's unfair labor practice.

6. Entering into a separation agreement with an employee, where the employee receives consideration for agreeing to refrain from union activities, forces an employee to waive Section. 7 rights. Therefore, such an agreement would be unlawful and unenforceable. In many states, including Michigan, it is legal for an employer and employee to enter into an agreement where the employee gives up prospective rights, i.e. non-competition or nonsolicitation agreements.

However, an agreement that requires an employee to release an employer from a future discrimination claim would not be lawful. This applies to rights granted by the NLRA as well as all other discrimination laws.

II. NLRB Remedies for Section 7 Violations

The remedies available to an employee who is discharged by the Employer in violation of his/her rights under Section 7 of the NLRA are as follows:

1. Reinstatement;

2. Back pay;

3. Expunge disciplinary action from employee's record;

4. Post notice for 60 days agreeing to refrain from violating NLRA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.