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The National Labor Relations Act Can Protect Non-Unionized Employees

The National Labor Relations Act is best known for regulating unions, strikes, and collective bargaining.  It is administered by the National Labor Relations Board.  Given that relatively few Texas employees belong to unions, the NLRA receives little attention from most Texas employment lawyers.

However, the NLRA is not limited to members of unions.  Section 7 of the NLRA includes protections that have nothing to do with collective bargaining process or unions:

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 . . . .

So what does this mean for a non-union employee or employer?  It means that an employer may not prohibit employees from concerted activities that are directed toward  workplace conditions.  The NLRB's FAQ provides some general guidance:

Is the activity concerted?

Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected?

Is it carried out in a way that causes it to lose protection?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

The NLRA has been applied to many different situations in which an employer sought to silence its employees from discussing wage and workplace issues, or in which non-union employees acted in concert in response to workplace conditions.

The Supreme Court addressed this principle over half a century ago in NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).  In that case, seven employees left the employer's facility to protest the bitterly cold conditions in the dead of winter.  The employer fired them.  Even though the employees were not union members, the NLRB found that this violated section 7 of the NLRA and ordered the workers reinstated with back pay.  The Supreme Court upheld the NLRB's decision.

The bottom line is that an employer must be cautious in taking actions that can be construed as stifling discussions among employees about workplace conditions or as punishing employees who protest workplace conditions, even publicly.  Even though the workers are at-will employees, and even though the conduct is not protected by the discrimination statutes, section 7 of the NLRA provides protections of which many employers are not even aware.

Conversely, an employee may have a claim for wrongful discharge that is pursued through an administrative process by the NLRB's general counsel.  Even if the employee is unprotected by the discrimination laws and is not a union member, the NLRA can protect the employee from being fired for engaging in concerted activities relating to the workplace.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes