This well-established principle surprises many nonunion employers who mistakenly think that the federal law protecting union activities, the National Labor Relations Act ("NLRA"), does not apply to them.  The reality is that the NLRA protects nonunion employees in exactly the same way it protects employees engaged in union activities.  And the law applies to virtually all private sector employers.

The National Labor Relations Board ("Board") recently reinforced this principle in a decision involving a nonunion employer whose employees engaged in a concerted refusal to work voluntary overtime to protest the employer's giving some overtime opportunities to part-time workers.  The employer responded to the refusal by discharging the "ringleader" of the effort and issuing written warnings to the other participants.  By doing so, the employer committed an unfair labor practice because the employees were engaging in "protected concerted activity," that is, conduct protected by the NLRA.  The Board ordered the employer to rescind the discipline, offer reinstatement to the discharged employee and pay him for any income he lost.

In the same decision, the Board also concluded that a relatively common "confidentiality" policy was unlawful.  The confidentiality rule was part of the employer's nondiscrimination policy—a policy that every employer should have.   A portion of the policy read: "[I]n cases involving a report of harassment or discrimination, all reasonable efforts will be made to protect the privacy of the individuals involved. . .  Employees who assist in an investigation are required to maintain the confidentiality of all information learned or provided.  Violation of confidentiality will result in disciplinary action."  The Board ruled that the policy was unlawful on its face because reasonable employees would read it as prohibiting them from speaking among themselves or to third parties about such complaints.  Because the NLRA permits employees to discuss matters of mutual concern, it is unlawful to prohibit those discussions.  Security Walls, LLC, 356 NLRB No. 87 (2011).

In earlier decisions, the Board has found a number of garden-variety policies to be similarly unlawful.  Here are some examples:

  • Prohibiting employees from discussing their wages or benefits;


  • Prohibiting the disclosure of information regarding fellow employees;


  • Prohibiting the making of false statements about the company;


  • Prohibiting the use of insulting or abusive language; and


  • Requiring employees to leave the premises immediately after work and not return until the start of their next scheduled shift.

Given the current composition of the Board, employers can expect to see vigorous enforcement and perhaps expansion of the NLRA, both for union-represented and nonunion employees.  Employers should carefully review their employee policies and rules of conduct to be sure they do not violate rights protected by the NLRA. 

© 2011 Perkins Coie LLP