National Labor Relations Act (NLRA)

The National Labor Relations Act (NLRA) is a federal law that governs labor relations in private companies that meet certain revenue standards. If you're covered by the law, your employees will have the right to organize a union; to bargain collectively through a representative; and to engage in strikes, picketing, and other "concerted activities for mutual aid and protection." You can't interfere with those rights or retaliate against employees for exercising them.

The NLRA is enforced by the National Labor Relations Board (NLRB), which is a bipartisan board appointed by the President of the United States. The president may appoint a majority of members from his or her own party.

Complying with the NLRA

During a union organizing campaign, management must obey a long list of rules about what it can say and do. In general, a company (including individual managers and supervisors) can't do anything to interfere with employees' free choice to support a union.

Generally speaking, you can limit the union's campaign activities the same way you limit other solicitations. If you've been lax in enforcing your solicitation rule, you can't suddenly start enforcing it when a union shows up.

The NLRA and Nonunionized Employers

The NLRA vests all employees, regardless of whether they're represented by a union, with the right to engage in "protected, concerted activity." The NLRB defines "protected, concerted activity" broadly. The Board's interpretation of the term encompasses a number of situations in which many of you might mistakenly think you're free to discipline an employee however you see fit.

Protected Concerted Activity

It's unlawful to discharge or otherwise discriminate against employees because of their union activities. What employers, both unionized and nonunionized, too frequently don't understand is that the NLRA also protects employees from discharge or reprisal because of participation in protected concerted activity unrelated to union activity.

In essence, the law protects an employee's right to act in concert with one or more other employees in furtherance of a common concern regarding any term or condition of employment. Any form of discipline or reprisal motivated by an employee's engaging in protected concerted activity is unlawful.

There are essentially two simplified forms protected concerted activity may take: (1) two or more employees clearly acting together—e.g., a walkout, a petition, or a group complaint, or (2) one employee acting on behalf of others—e.g., a telephone call to a local or federal agency on behalf of others.

Protected activity is difficult to define with clarity. The important thing is to recognize when protected concerted activity may exist so you can tread carefully before acting.