For many Human Resources and Labor Relations professionals, one of the best union-proofing strategies is developing a deep understanding of Section 7 of the National Labor Relations Act. This can come in handy during a union organizing drive, but even before you’re certain there’s a campaign, it’s smart to know what can and can’t be said or done. Sections 7 and 8(a)(1) of the National Labor Relations Act work in tandem to define what is considered interference with employee rights and to give employees the right to choose.
Understanding the Minefield of Employee Rights
Section 7 of the NLRA guarantees 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.” Section 8(a)(1) states that it’s an unfair labor practice for any employer to “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.
A key concept is “protected, concerted activity.” The NLRB regularly posts its recent cases in which employees were fired, suspended or penalized for involvement in what the NLRB considers protected, concerted activity, which may or may not involve unions. Two or more employees who work together to improve the condition and terms of their employment are engaged in protected, concerted activity.
Under Section 8(a)(1), employers can’t do anything that interferes with employee rights. The NLRB looks at employee complaints through the “chill effect” lens. Your managers don’t have to outright ban union activity or discipline an employee to violate rights. It’s enough to just discourage people. Workplace rules that seem to “chill employees in the exercise of their Section 7 rights” aren’t legal, and these subtleties can be a minefield for companies working to maintain their direct connection with employees.
Violations in the Simplest Acts
Trying to stay on the right side of the law, a company could quickly become mired in the hundreds of NLRB board decisions covering the employee complaints surrounding unionization – from unlawful termination to violations of protected, concerted activities. On June 6, 2017, a decision and order was issued in a case between Jacmar Food Service Distribution and Teamsters Local 630 (Case 21-CA-193952). This was a refusal-to-bargain case because Jacmar contested union certification.
The company admitted it refused to bargain but said the election process wasn’t fair and valid because the union used coercion, didn’t give employees opportunities to exercise free choice, and held an election that wasn’t neutral and didn’t protect the ballots and election process. The NLRB concluded that when they refused to bargain with the union, the employer engaged in unfair labor practices, even though it presented strong evidence against the union’s representation of workers.
On March 21, 2017, in the case of In-N-Out Burger, Inc. and Mid-South Organizing Committee (Cases 16-CA-156147 and 16-CA-163251), the employer was found to have violated employee rights by prohibiting employees from wearing buttons and insignias pertaining to wages, employment conditions, hours, unions or other protected activities. The employer had to amend its policies to allow the wearing of these items and advise employees of the policy changes.
Checklist of Section 7 ‘Dos and Don’ts’
Companies do have rights before and during a union organizing campaign, but the NLRB has bent over backwards to liberally interpret what is protected, concerted activity in order to encourage and support union organizing efforts.
Employers may never:
- Threaten or employ undesirable consequences if an employee supports unionization: i.e., threatening to demote or terminate or take away benefits
- Threaten employees with punishment for engaging in protected, concerted activity
- Make promises of rewards to employees if they vote against unionization or to decertify
- Change Human Resources practices during a union organizing campaign to punish employees involved in unionizing: i.e., withholding benefits or refusing to give a previously planned wage increase, etc.
- Coercively question a union-supporting employee or co-workers about their union activities
- Survey employees to find out if they support unionization, forcing them to respond under the threat of reprisals
- Conduct an employee survey, making it public knowledge as to who did and did not support unionization
- Spy on employees to determine what union activities they’re involved in
- Make employees fearful by doing things like videoing or recording employees engaged in protected, concerted activities
- Write employee handbook policies and rules designed to discourage employees from exercising their Section 7 rights
- Prohibit employees from wearing pro-union buttons, insignias and T-shirt graphics
- Issue policies that prevent on- or off-duty employees from accessing working or non-working space as a group in order to specifically make it more difficult to meet
- Actively solicit employees to sign or approve a decertification petition
- Discipline an employee primarily for the reason the person engaged in protected, concerted activities
- Tell employees they’ll be forced to strike in order to get employer concessions
- Make inaccurate statements about the union
- Visit employees in their homes to discourage a vote for unionization
- Prohibit the distribution of only union-related materials in specific areas: i.e., allowing nonprofits to post materials on bulletin boards while restricting unions
- Prohibit union solicitation during work hours, except when the employee is expected to be working and is in a working area
- Write a policy that prohibits distribution of materials of any kind on any company property because employees have the right to distribute materials during non-working time and in non-working areas
- Inform employees of the company’s opposition to unionization
- Describe the benefits employees already enjoy, the employer’s history of paying fair wages and the fact that union bargaining could impact current salaries and benefits in the future
- Forecast fact-supported potential impacts on the company, if the workforce unionized
- Inform employees they don’t have to join a union
- Tell employees they don’t have to talk to union organizers at work or at home
- Describe the disadvantages of unionization, including the cost of dues, and the fines and fees typically assessed by the union against employees
- Inform employees that union strikes can lead to loss of a job because they may be permanently replaced
- Describe fact-based union activities and union official backgrounds that demonstrate the union’s frequent lawlessness: i.e., threats against employers, arrest records of union representatives, employer property damage cases, etc.
- Inform employees they aren’t required to vote for unionization during the election, even if they signed a union authorization card
- Point out any misleading statements about the employer or union benefits
- Prevent non-employee union supporters from accessing private property, as long as the union has other ways to contact employees
Staying on Top
The NLRB has regularly used employee complaints to support an agenda that leans toward unionization. These decisions put an additional compliance burden on employers, which is why many companies seek expert help when developing employee communication systems and training programs. Labor law has become too complex to manage without professional assistance, and we highly recommend consulting a labor attorney when questions regarding Section 7 rights arise.