Articles

Don't Forget the Collective: Union Rights of the Non-Unionized Worker

A Guide for Employees and Employers
Charles A. Horowitz

With media pundits nightly debating the Obama administration's "socialist" agenda, including government ownership of industry, national health care legislation and proposals to aid union organizing campaigns (such as "card check"), collectivism has moved to the front burner of national consciousness. Even so, statistics show that a mere 7.6% of private sector employees nationwide presently work in a union shop, many of whom are employed in the moribund automotive and other large manufacturing industries. If you are one of the remaining 92.4% employees, or own a business staffed by such employees, you might reasonably ask, "What do union rights matter to me?" As this article will explain, they matter quite a lot.

The Right to Engage in Concerted Action

Many employees, employers and even lawyers are not aware that nonunion employees have the right, protected under federal labor law, to collectively petition their employer to address work-related grievances, involving, among other things, wages, hours, work rules or workplace safety. Section 7 of the National Labor Relations Act (the "Act") provides in relevant part:

Employees shall have the right to self-organization, to form, join, or assist labor organization, 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, and shall also have the right to refrain from any or all of such activities [...] (29 USC § 157).

"Employees" covered by the Act can include almost all employees other than supervisors.

Protected "concerted activities" include actions by individual employees united in pursuit of a common work-related goal. Accordingly, for an employee's activity to be "concerted," it must be with or on the authority of other employees, and not solely by and on behalf of the employee himself or herself.

Remedies for violations of this section include reinstatement with full back pay plus interest, as well as the recovery of attorney fees in the event that an employee prevails at hearing. Violations of this section are prosecuted not in court but in administrative actions brought before the National Labor Relations Board (the "Board"). When a violation is found, employers also are required to post notices to all employees detailing both the violation and the Board-ordered remedy.

The recent case of Dickens, Inc. and Wenquing Lin, 2008 WL 2275440 (NLRB) illustrates the risk of violating this section. The employer in that case initiated a discussion about bonuses with the plaintiff, Lin, and two other employees. During the discussion, Lin complained about the size of the bonus, commenting that the rate he and his fellow employees (using the word "we") were being offered was only .2%. In finding for the employee, the Board applied the general rule that employee complaints using the first person plural, during employer-initiated discussions about terms and conditions of employment, constitute concerted activity. On this basis, the Board ruled that Lin's subsequent discharge violated the Act.

How to Avoid Liability Under Section 7

The Obama administration has signified that it will pursue violations of the nation's labor and employment laws with more vigor than has been the case over the last eight years. To avoid costly litigation, damages and penalties, it is important that owners of businesses, large and small, learn to recognize and respond appropriately to "concerted activities" of their employees. Depending on how they are drafted and applied, several forms of common workplace policies have the potential to interfere with Section 7 rights, including (1) employer confidentiality policies; (2) solicitation/distribution policies; (3) electronic usage policies and (4) bulletin boards.

Liability under the Act need not be willful or intentional, as shown in the recent case of Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009). The employer there fired an employee for violating a facially neutral confidentiality policy. The court affirmed a Board ruling that the employer had violated the Act by adopting a confidentiality provision that was unreasonably broad, insofar as it required employees not discuss their compensation with other employees. Not surprisingly, the court went on to hold that by terminating the employee in question, the employer also violated the Act, and affirmed the relief ordered by the Board, which included company-wide injunctive relief and reinstatement of the fired employee with back pay and interest. Notably, the court held that the employee's firing for violating the policy was unlawful regardless of whether the conduct could have been prohibited by a lawful rule.

In short, employers must do more than learn to recognize the more obvious collective acts (such as complaints over wages) to comply with the law. Employers must take care in drafting workplace policies which, although facially neutral, may inadvertently lead to Board discipline.

Although outside the scope of this article, union organizing campaigns also raise a host of difficult questions for employers. A useful mnemonic for the four forms of employer prohibited conduct is "TIPS": threats, interrogation, promises and spying. This subject will be addressed in greater detail in a forthcoming article.

Summary

Now more than ever, it is important for employers and employees to know their rights and obligations under federal labor law. If you fall into either category, Mansfield Tanick & Cohen is available to assist you in this complicated and vital area of the law.

Charles A. Horowitz is a partner with Mansfield Tanick & Cohen, practicing in the areas of employment, shareholder, insurance and class action litigation. He can be reached via email at chorowitz@mansfieldtanick.com.