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HOW THE
NATIONAL LABOR RELATIONS ACT
AFFECTS
NON-UNION COMPANIES REGARDING
IMMIGRATION ISSUES
All company officials know
that they cannot discriminate
against employees because of
their
union membership,
activities or support. However,
few are aware of a section of
the National Labor Relations Act
(NLRA) that protects employees
from discrimination when they
engage in “protected concerted
activity,” where there is no
union on the scene.
Section 7 of the NLRA gives
employees the right to form or
join a labor organization. In
addition, this Section also
protects the right of employees
“to engage in other concerted
activities for the purpose of
collective bargaining or other
mutual aid or protection….” To
be protected by the NLRA, the
employee’s activity must be both
“concerted” and “protected.” The
NLRB defines “concerted
activity” as conduct engaged in
by two (2) or more employees, or
by one (1) employee, acting on
behalf of a group, authorized to
act by a group, or where the
individual’s activity is the
“logical outgrowth” of group
activity.
In addition to being concerted,
the employee’s activity must be
for the purpose of collective
bargaining or for “other mutual
aid or protection.” The U.S.
Supreme Court and the NLRB have
interpreted the phrase “other
mutual aid or protection”
broadly. The Board has found
that a group of employees who
expressed concerns over the
possible implementation of
immigration legislation that
could affect their jobs were
engaging in “protected concerted
activity,” and therefore, could
not be disciplined or discharged
because of such conduct. The
Supreme Court in Eastex, Inc. v.
N.L.R.B., a case that I
participated in as the trial
lawyer for the NLRB at the time,
held that “protected concerted
activity” could include protests
over political issues.
A recent example of “protected
concerted activity” could be
found in the recent protests
against pending immigration
legislation. Companies who
discipline their employees for
participation in these protests
may have committed unfair labor
practices (ULP) under the NLRA.
A nationwide ULP Charge against
certain employers was filed on
April 28, 2006, based upon
actions taken by these employers
against their employees who
protested this immigration
legislation. |
