The Employer’s Guide to Section 7 of the National Labor Relations Act

Employees in the U.S. have the right to union representation if they want it. Federal law protects the right to unionize and engage in related activities. Employers who violate these rights could face significant penalties. Section 7 of the National Labor Relations Act (NLRA) describes the protections that the law provides. It covers a wide range of activities, which can put employers in a precarious position. If a person could reasonably interpret an employer’s action or statement as interference with employees’ rights, it could be unlawful. 

Prepare your organization for any eventuality with an overview of section 7 and tips for how employers can avoid practices that could result in a complaint.

What Is the National Labor Relations Act?

The NLRA is a nationwide right to unionize act. Congress enacted it in the 1930s during the Great Depression in order to “encourag[e] the practice and procedure of collective bargaining.”

What Rights Does Section 7 Protect?

Section 7 specifically identifies the following rights:

• The right to self-organization
• The right “to form, join, or assist labor organizations”
• The right “to bargain collectively through representatives of their own choosing”
• The right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”

The first three items on the list are fairly straightforward in their meaning. The fourth item, “concerted activities,” may include a wide range of activities intended to protect or benefit employees.

Section 7 also states that employees have “the right to refrain from any or all of such activities,” unless a collective bargaining agreement (CBA) requires them to join a union. Many states have laws that prohibit mandatory union membership, known as right-to-work (RTW) laws.

What Are Right-to-Work Laws?

Two federally legal types of agreements between employers and unions can require union participation in some form among employees:

• Union Shop: The employer may hire anyone, but non-union employees must join the union within a certain period of time (e.g. 30 days) as a condition of continued employment once they are hired.
• Agency Shop: The employer may hire anyone, regardless of union membership status. However, non-union employees will be required to pay the union an “agency fee” to cover the cost of collective bargaining.

The NLRA allows these agreements, also known as union security agreements, but individual state Right to Work laws might prohibit them. In states with such laws, CBAs cannot include clauses that require all employees to either join the union or support it financially. Workers still have the right to organize. They just cannot compel other employees to join.

Who Enforces the National Labor Relations Act?

The National Labor Relations Board (NLRB) is responsible for investigating alleged NLRA violations. Workers may file charges with their regional NLRB office. The case may go before an administrative law judge (ALJ), who has the authority to rule on complaints and issue penalties.

How Can Employers Avoid Violating the Law?

Section 8(a) of the NLRA defines “unfair labor practices” by employers. It includes:

• “Interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in section 7”;
• Discriminating or retaliating against employees because they engage in protected activities; and
• Refusing to participate in collective bargaining with authorized union representatives.

Overt acts of coercion or intimidation, such as threats to fire employees engaged in union organization, tend to be clear NLRA violations. Employers can also violate the NLRA without intending to do so. For example, an employment policy or practice could have the effect of restricting protected activity.

The following practices can help employers avoid inadvertent violations:

• Union organizing often brings heightened scrutiny. Be careful about any changes in policies while organizing activities are ongoing.
• Employment policies should be as narrowly tailored to the needs of the workplace as possible. A dress code, for example, could be unlawful if it bans pro-union buttons, hats, or other items without a reasonable justification.
• Restrictions on discussions of work-related matters, such as wages or workplace safety, are often suspect.
• Many states are limiting employers’ ability to include arbitration agreements in employment contracts. Any agreement that waives legal rights found in the NLRA could be unlawful.
• Limitations on organizing activities during working hours are generally acceptable. Attempts to restrict activities outside of work hours, however, could violate the NLRA, even if those activities occur on an employer’s premises. Employees might legally be able pass a union petition around during a lunch break, for example, but not while on duty.

Learn How Labor Relations Software Can Help Help Your Business

Employers who promote union avoidance among their employees must walk a fine line. They may violate the law that protects employees’ right to unionize without intending to do so. Even the appearance of unlawful acts by an employer can lead to legal complaints. This can be expensive and time consuming no matter the outcome. LaborSoft’s labor relations software can help employers address their employees’ needs and keep them satisfied. Contact us today to set up a customized demonstration of our software for your business.

Get the facts on recent increases in employee & labor relations issues — and how HR Case Management Software can help you stay compliant. Download our guide, Employee and Labor Dispute Lawsuits: Mitigating Legal Risks.