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.

 

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