Legal Updates

April 2004

Non-Union Employees’ Labor Law Rights

Most employers are aware that federal labor law provides unionized employees and employees seeking to unionize with certain protections. However, a number of employers fail to recognize that non-union employees who are not seeking to form a union also have rights under federal labor law. This article is intended to help employers become familiar with non-union employee's rights under federal labor law.

Protected, Concerted Activity
Federal labor law protects private sector workers’ rights to engage or not engage in concerted activity. This right is most commonly associated with the right to form and join unions. However, the right to engage in concerted activity has been interpreted by courts to go far beyond union activity; it includes actions taken by two or more employees even if they are not in a union and are not seeking to form a union.

Weingarten Rights for Non-Union Employees
Under the United States Supreme Court case of J. Weingarten v. NLRB, a union employee has the right to have a union representative present at an investigatory interview that he or she reasonably believes will lead to discipline if the employee makes an affirmative request for representation to the employer. Non-union employees similarly have a right to have a co-worker present in an investigatory interview that they reasonably believe could lead to discipline if they make a request for co-worker representation. There is no obligation on the employer to inform them an employee of this right, but the right must be honored once the employee makes a request.

Discussion Among Employees
The National Labor Relations Board (NLRB) has held that discussion about issues such as wages, harassment complaints, vacation policies, and other terms and conditions of employment are protected activity and that the employer cannot ban such discussions by employees. This right to discuss wages, hours and other terms or conditions of employment with other employees applies to non-union and union employees alike. Even employee complaints to, or discussions with, non-employees about the employer’s pay practices or conditions of employment have been ruled to be protected activity by the NLRB. For example, the NLRB found that an employer who fired an employee for complaining about his pay to a customer was in violation of federal labor law in Bowling Transportation v. NLRB. That decision was upheld in 2003 by the Sixth Circuit Court of Appeals.

Work Stoppage
Usually, work stoppages are associated with unions. However, non-union employees can and do engage in work stoppages from time to time. Non-union employers who do not follow federal labor law rules for dealing with work stoppages will face the same unfair labor practice liability as if the employees had been union employees. Non-union employees have also been found to have the same right to honor a lawful picket line as union employees.

Summary
Non-union employers are subject to liability for unfair labor practices under the National Labor Relation Act if they do not act in compliance with the Act in dealing with employees who are engaging in concerted activity for mutual aid and protection. If you have questions regarding your obligations under the National Labor Relations Act contact, you should counsel experienced in dealing with these issues.