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The National Labor Relations Act was passed by congress in 1935. The reason for the NLRA was to encourage collective bargaining by protecting workplace democracy providing employees in private sector workplaces the right to seek better working conditions and designation representation if needed without fear of retaliation. This act can apply to both unionized and non-unionized employees (“The Law-National Labor Relations Act,” n.d.).
Under the National Labor Relations Act all employees whether union or non-union have rights and those rights are protected. Employees have the right to participate in a protected strike, picket, or protest regarding work-related issues. The object, purpose, timing of the strike along with the conduct of the strikers all play a part in whether the strike would be considered lawful and protected (“The Right to Strike,” n.d.).
There are two types of lawful strikes, unfair labor practice strikes, & economic strikes. Unfair labor practice strikers are striking due to an unfair labor practice committed by their employer and the strikers are entitled to have their jobs back once the strike has ended. Economic strikers go on strike typically for some kind of financial reason such as higher wages or shorter hours. Economic strikers are entitled to continue employment; however, they can be replaced under certain circumstances. (“The Right to Strike,” n.d.).
Strikes can be unlawful for many reasons. A strike supporting an unfair labor practice committed by a union would be considered unlawful. Timing can influence the lawfulness of a strike as well. If there is a no-strike provision in a contract, employees who violate this provision and go on strike could be discharged as they would not be protected by the act. In addition to the previously stated unlawful strikes, if the strikers involved were accused of serious misconduct such as threatening violence or attacking management, the employee could lose protection and their right to reinstatement. This would be the case even if the strike were lawful (“The Right to Strike,” n.d.).
Concerted activity is also protected under the NLRA for both unionized and non-unionized employees. All employees have the right to meet with co-workers to discuss wages, benefits, and any other working conditions you feel necessary. Using petitions and social media to share concerns are both examples of concerted activity that would be protected. An employer cannot punish or threaten an employee for participating in or coordinating the concerted activity. However, if the employee slanders or says anything that is knowingly false about the employer, the employee could lose protection under the NLRA (“What’s the Law?”, n.d.).
James Brown is a good example of an employee who was protected by the NLRA. He was a truck driver who was discharged after he refused to drive a truck, he truly believed was not safe to drive due to faulty brakes. Initially, the NLRB held that Browns refusal was concreted activity under Section 7 of the NLRA and was and unfair labor practice under section 8(a)(1) of the Act (Cihon & Castagnera, 2019).
The Court of Appeals disagreed with the board on this case and declined enforcement, which then caused the board to pursue it further in Case 14.1 NLRB v. City Disposal System. The NLRB was able to justify their decision with the “Interboro Doctrine” where an individual’s assertion of a right is recognized as concerted activity. With this justification the NLRB stated that the assertion of this right affects all employees covered by collective-bargaining agreement under Section 7. The board also proved they found that Brown’s refusal to drive truck 244 was based on honest and reasonable belief that the brakes were faulty, and according to section 7 as the employees’ statement is based on just that he is not-required to perform the task under the collective-bargaining agreement. In the end, the Court of Appeals reversed their judgement and Brown was protected (Cihon & Castagnera, 2019).
Another great example of employees protected by the NLRB is Starbucks Corporation and Workers United Labor Union International, a/w Service Employees International Union. Case 20-CA-296184. In this case employees filed a complaint claiming that they were threatened to lose pay increases and benefits if they voted for the union. It was found that the respondent, Starbucks, did violate Section 8(a)(1) of the NLRA (“373 NLRB No. 373 2024). You can find this case along with many other cases at https://www.nlrb.gov/cases-decisions/decisions/board-decisions.
References
Cihon, P. J., & Castagnera, J. O. (2019). Employment and Labor Law (10th ed.). Cengage Learning US. https://online.vitalsource.com/books/9798214342320
United States Government. (2024). 373 NLRB No. 373. National Labor Relations Board. https://www.nlrb.gov/cases-decisions/decisions/board-decisions
United States Government. The Law-National Labor Relations Act. (n.d.). National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law#:~:text=National%20Labor%20Relations%20Act&text=The%20NLRA%20protects%20workplace%20democracy,representation%20without%20fear%20of%20retaliation
United States Government. (n.d.) The Right to Strike. National Labor Relations Board. https://www.nlrb.gov/strikes
United States Government. (n.d.). What’s the Law? National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/whats-law
