The National Labor Relations Act (NLRA) is notoriously complex and there are numerous exceptions to almost every rule. As an HR Generalist in a nonunion company, the following are five areas where questions frequently arise and you may be called upon to know your way around the issue on the spot:
1) Section 7 Rights: Nonunion employees may be protected from discipline or discharge by the NLRA. Section 7 of the NLRA gives all employees (union and nonunion) the right to engage in protected concerted activities which are usually group activities (two or more employees acting together) attempting to improve working conditions, such as wages and benefits. Employers may not interfere with, restrain, or coerce employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective-bargaining purposes, or engaging in protected concerted activities, or refraining from any such activity. An employee is engaging in section 7 activity when he or she complains about wages, hours or working conditions on behalf of himself and other employees, and may not be disciplined or discharged for these actions. Likewise, nonunion employees who engage in a work stoppage (strike) as a form of protest may not be fired for doing so. However, partial strikes, sit ins and work slow downs are generally not protected.
2) Employer’s Private Property Rights: Unions and non-employee union organizers may not enter onto an employer’s private property to picket or leaflet. Employees may distribute literature and solicit on an employers private property during non-work time and in non-work areas.
3) Handbook Nonsolicitation Clauses: An employer may adopt a policy prohibiting solicitation and distribution of literature during working time and in work areas so long as the rule is (a) unambiguous with regard to the definitions of work time and work areas, (b) promulgated in advance of organizing activities, (c) not applied for the first time to known union adherent, and (d) uniformly applied to union and nonunion solicitations. The NLRB is currently considering the scope of the application of Nonsolicitation policies to an employer’s e-mail system.
4) TIPS (or SPIT) Training: Supervisors can commit NLRA violations by their comments and reactions to employees during an organizing campaign. Almost every lawyer and consultant will use the acronym T-I-P-S to train supervisors about what they can and can’t do in during an organizing campaign:
T stands for threaten. Supervisors cannot threaten individuals participating in union activities with reprisals such as reducing their benefits, termination of employment, or any other kind of retaliation. Companies also cannot commit the threatened acts.
I stands for interrogate. Supervisors cannot question any employees about whether they signed a union card, whether they support the union effort, how they would vote in a union election, how they feel about union representation, or how others feel about the same subjects.
P stands for promise. Supervisors cannot promise wage or benefit increases, promotions, or future benefits to employees for opposing the union. You also cannot grant any such benefits.
S stands for spy. Supervisors cannot watch union activities in order to determine who is attending meetings, signing cards, or supporting the union. This applies on- and off-work time and on- and off-work premises
5) Card Check Recognition: Pending legislation called the Employee Free Choice Act would require the NLRB to certify a union when a majority of workers sign authorization cards that designate the union as their bargaining representative. The card check process would eliminate the secret ballot election traditionally used to determine union representation. Under the current law, union organization of a workforce occurs after a showing of interest to the NLRB by the presentation of authorization cards together with a recognition petition identifying what the union believes to be an appropriate unit for organizing. The employer may contest the appropriateness of the unit by demanding a hearing before an NLRB representative. After the unit is certified as appropriate by the NLRB, a secret ballot election is held (generally within about 30-45 days after the petition was filed). If the union receives a majority of the ballots cast by employees in the unit, it wins the right to represent the employees in an appropriate bargaining unit. Eliminating the secret ballot has a tremendous impact on an employer’s ability to combat organizing attempts