12:45 PM The NLRA Provides Significant Rights and Protections to Nonunion Employees |
Employees do not need to be union members to be protected by the National Labor Relations Act. The NLRA is generally perceived as protecting just union employees, but the Act really protects and gives rights to both union and nonunion employees. The NLRA gives every employee the right to engage in activities for the mutual aid and protection of employees, including activities that impact the terms and conditions of employment. Employers cannot interfere with or, in any way, discipline employees who exercise their NLRA rights. That includes nonunion employees who exercise their NLRA rights. In Ellison Media Company, Daniel Miller believed that he heard Joel Gable (a manager) make a sexually suggestive comment and he confronted Gable. Miller then drafted an email to his coworker Mary Christie to tell her about the comment and confrontation. Miller accidentally sent the email to Gable instead of Christie. Gable asked that Miller meet with him. During their meeting, Gable held up a copy of Miller’s email and said “this needs to stop now.” Gable then said that he was tired of the gossiping and would terminate Miller and Christie if he saw them discussing the matter again. The test of whether conduct is prohibited by the NLRA is whether the conduct “may reasonably be said, to interfere with the free exercise of employment rights under the Act.” The NLRB found that Gable’s statement “this needs to stop now” was unlawful because “it reasonably tended to interfere with Miller’s free exercise of his Section 7 right to discuss sexual harassment complaints with other employees.” The NLRB also found that Gable’s threat of termination was unlawful because Gable’s threat “would reasonably be interpreted to mean that Miller would be discharged if he continued to exercise his protected right to discuss the comment with Christie.” The interesting thing about the Ellison Media Company case is that many employers and employees believe that Gable’s conduct is acceptable but, in actuality, his conduct is prohibited by the NLRA. Nonunion employees have the right to discuss the terms and condition of their employment. Many employees mistakenly believe that NLRA only protects group actions, not individual employee action. But, as Dr. Kristine McCallum’s case illustrates, the NLRA protects nonunion employees who act alone provided the employee’s actions are directed toward group rights or the terms and conditions of employment. Dr. Kristine McCallum was a board certified family physician who worked under contract at Family Healthcare Inc. Family Healthcare proposed a new contract for its physicians that forced them to accept less compensation or work longer hours. After a couple unsuccessful negotiation meetings, Dr. McCallum informed Family Healthcare that she and other physicians were going to withdraw their hospital privileges to protest the terms of the new contract. On July 2, 2008, Dr. McCallum submitted her withdrawal of privileges and the withdrawal of privileges of six other physicians. Family Healthcare “summoned Dr. McCallum to a meeting and handed her a short letter terminating her employment contract.” When faced with an unfair labor practice claim, Family Healthcare alleged that Dr. McCallum was terminated because she was disrespectful in rolling her eyes, huffing, and slamming her hand on the desk multiple times. The NLRB saw through that fictitious rationale and stated that “it is crystal clear that [Family Healthcare] would not have terminated Dr. McCallum in the absence of her challenge to the new contract and her concerted activity with other [ ] physicians to withdraw their hospital privileges in light of the new [ ]contract.” The NLRB held that Dr. McCallum (a nonunion employee) was protected by Section 7 of the NLRA because her challenges were protected concerted activity. The NLRB also held that Family Healthcare violated Section 8 of the NLRA in terminating Dr. McCallum’s employment in retaliation for her protected concerted activity. The Board ordered Family Healthcare to reinstate Dr. McCallum and give her back pay. The NLRA protects individual employees who challenge the terms and conditions of employment. Employees are familiar with federal employment legislation such as Title VII, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. But, employees need to know that there are many other laws that provide protections and create rights for employees. The National Labor Relations Act is one of those lesser known laws that provides significant protections to all employees, union and nonunion. |
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