The following was first published on Berchem Moses PC's Connecticut Labor & Employment Law Journal. It is reposted here with permission.

It is a common misunderstanding that the National Labor Relations Act only applies to unionized employers.

It doesn’t—and being unaware of that fact can lead to increased liability and substantial costs. 

The heart of the NLRA is Section 7, which provides employees “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."

It is this last piece—engaging in other concerted activity—that gives private sector employees rights, even if not unionized or in the midst of a union organizing campaign.

It gives employees the right to band to together in an effort to change some aspect of their working conditions.

Potential Pitfalls

With the rise of walk-outs, political unrest, and employee demands for social justice in the workplace, it has become increasingly important for private sector employers, even non-union workplaces, to understand potential pitfalls under Section 7.

In a recent case, five employees of a non-unionized medical office initiated an impromptu walkout in protest of the mistreatment they endured by the office manager.

It's increasingly important that private sector employers, even non-union workplaces, understand potential pitfalls.

The employees claimed that the office manager used abusive language towards them and threatened them in the past.

When the employees walked out in protest, the employer took the position that the employees effectively quit.

Protected Activity

The National Labor Relations Board thought otherwise, finding that the employer unlawfully discharged the employees because the employees had engaged in protected concerted activity.

Accordingly, the NLRB ordered the medical office to reinstate the employees with full back pay. 

The NLRB has been aggressive in seeking to expand its authority.

The NLRB under the Biden administration is very active, and has been aggressive in seeking to expand its authority, including its remedial power to award punitive damages for violations of the act.

Private sector employers should be cautious when addressing group activity aimed at working conditions or risk finding themselves in the crosshairs of the NLRB.

About the author: Christopher Henderson is an associate with Berchem Moses PC's labor and employment department. He primarily represents public sector employers in labor and employment disputes including grievance arbitration, prohibited practices, and other employment related litigation.

Filed Under: Employment Law

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