The NLRA covers most employers involved in interstate commerce, regardless of whether their workforce is unionized or not. It doesn’t apply to certain employers, including airlines, railroads, agricultural operations and government entities which are governed by other federal or state laws (i.e., the Railway Labor Act, the California Agricultural Labor Relations Act, etc.).

The NLRA excludes the following employees:

• Agricultural laborers.
• Domestic servants.
• Any individual employed by his parent or spouse.
• Independent contractors.
• Individual employees working for an employer subject to the Railway Labor Act.
• Supervisors (supervisors who have been discriminated against for refusing to violate the NLRA may be covered).
• Individuals employed by employers, such as railroads and airlines, subject to the Railway Labor Act.
• Federal, state and local government employees, including those employed at public schools, libraries and parks, Federal Reserve banks and wholly-owned government corporations.
• Individuals employed by any other person who is not an “employer” as defined in the NLRA.

The NLRA provides covered employees certain rights to join together to improve their wages and working conditions, with or without a union.

Protected Concerted Activity

The NLRA, under section 7 and section 8(a)(1), protects the rights of employees to engage in “concerted activity,” which the NLRB generally defines as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection. Examples of employee rights under section 7 of the NLRA include:

• Two or more employees discussing how they would vote in a union election;
• Two or more employees addressing their employer about improving their pay;
• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other;
• An employee testifying on behalf of a union before a state legislative committee about the safety of the workplace;
• An employee speaking to an employer on behalf of one or more coworkers about improving workplace conditions; and
• Asserting rights under the collective bargaining agreement.

Under the NLRA, covered employers cannot:

• Discriminate against any employee when hiring, granting tenure or determining another term or condition of employment to encourage or discourage membership in a labor organization.
• Discharge or otherwise discriminate against an employee because they filed charges or testified pursuant to the provisions of the NLRA.
• Discriminate against employees for engaging in concerted activity related to terms and conditions of employment.

If you are found to have engaged in an unfair labor practice under the NLRA, you can be required to:

• Cease and desist any further unfair conduct.
• Reinstate an employee who has been unlawfully discharged.
• Pay back wages and restore benefits that an employee lost as a consequence of your unfair labor practice.

The California Agricultural Labor Relations Act contains similar procedures and protections for agricultural employees in California.2

Employee Rights to Strike and Picket under NLRA

Protected concerted activity under Section 7 of the NLRA includes the right for employees to strike and picket. The U.S. Supreme Court confirmed that this right extends to non-unionized workers. Though the law protects the right to strike, it also places limitations and qualifications on how employees exercise that right.3

The lawfulness of a strike may depend on the object or purpose of the strike, its timing or the conduct of the strikers. The object(s) of a strike and whether they are lawful are matters not always easy to determine. The status is critical to both striking employees and employers facing a strike because it determines rights to reinstatement and back pay.

Strikes for a lawful object fall into two classes:

1. Economic: Strikes intended to obtain economic concessions, such as higher compensation, shorter hours or better working conditions from the employer are economic strikes.
2. Unfair labor practices: Employees may strike to protest unfair labor practices, which are actions taken by an employer that violates employees’ rights under the NLRA, such as retaliating against employees for engaging in protected concerted activity.

Both classes of strikers retain employee status, but unfair labor practice strikers have greater rights of reinstatement to their jobs.

Strikes are not always protected by the NLRA. A strike may be unlawful and lose NLRA protection if the object or purpose of the strike is unlawful. For example, a strike in support of a union’s unfair labor practice or one that would cause an employer to commit an unfair labor practice may not be protected.

Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct includes, among other actions, violence and threats of violence. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement include the following:

1. Physically blocking people from entering or leaving a struck facility;
2. Threatening violence against non-striking employees; and
3. Attacking management representatives.

The U.S. Supreme Court ruled that a “sitdown” strike, when employees stay in the facility and refuse to work, is not protected by the NLRA — it deprives owners of their property.4

As with the right to strike, picketing can be prohibited because of its object, timing or misconduct on the picket line.

Strikes and picketing can be complicated issues. Because such conduct may be protected, depending on the circumstances, employers should consult with legal counsel if employees engage in strikes or picketing.

1. 29 U.S.C. 151, et seq.