Collective Bargaining Rights For Managers And Other Nonunionized Employees

Federal labor law protects more than just unionized employees. Employees who group together to address employment concerns or to pursue collective rights (such as pay rates or work conditions) are also protected. Sometimes going to court is the best option for employees facing retaliation for collective activities. Sometimes federal labor law requires claims be brought to the National Labor Relations Board. Unfortunately this complex area of law requires specialized legal knowledge and skill to identify the right way to pursue a claim. For some victims of discrimination or retaliation the court system will be the best and last way to seek justice from wrongful discharge. But other times, the right place to go is not the court, but the National Labor Relations Board (NLRB), even if you do not work in a unionized environment and have no immediate intention of unionizing. At NachtLaw, our lawyers [link] have the skills and experience to protect your rights whatever the avenue, and to identify a course required to best protect your rights to raise widespread employment issues in the workplace. We handle labor and employment matters throughout Michigan and the Midwest.

Choosing the wrong course of conduct can have a deadly impact, even for those with legitimate claims. Getting good legal advice early on can be the difference between protecting your rights and losing your rights. For example, recently the Sixth Circuit Federal Court of Appeals rejected a wronged employee's claims, while at the same time affirming his rights to seek relief with the NLRB. An unusual result, but not uncommon in the murky area where employment law and labor law intersect.

In Lewis v. Whirlpool, Timothy Lewis brought a wrongful termination claim against his former employer, Whirlpool Corporation. Lewis claimed that he was unlawfully fired (in violation of Ohio public policy) for his refusal to let go employees for unionizing activities. The district court for the Northern District of Ohio dismissed Lewis' complaint for lack of subject matter jurisdiction and the Sixth Circuit Court of Appeals affirmed. In other words, both courts yield the final verdict on Lewis' case matter to the NLRB since it has final and complete jurisdiction over such matters. Lewis had brought a charge with the NLRB first, but he failed to appeal when the NLRB ruled that he was not qualified to bring a claim.

In Lewis' case, federal courts found that regular courts did not have subject matter jurisdiction over Lewis' wrongful termination claim because it had already been pre-empted by the National Labor Relations Act. By "pre-empted" the courts mean that the NLRB has exclusive jurisdiction over claims that allege violations of the National Labor Relations Act due to "the expressed congressional desire for uniformity in the nation's labor policy." If you allege that your employer violated federal labor laws in the NLRA, then you can only seek relief through the NLRB. Even though Mr. Lewis was a supervisor, he was still protected by the NLRA in certain situations, generally only when a supervisor is punished for refusing to retaliate against workers for unionizing activity.

Protections For Nonunion Workers

For most workers, particularly those not a part of a union, the intersection of the NLRA and general legal protections is not easy to navigate. The official standard set by the Supreme Court is that: "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by §7 of the NLRA, or constitute an unfair labor practice under §8, due regard for the federal enactment requires that ... jurisdiction must yield [to the NLRB]." The idea is that whenever the activity in question is arguably subject to §7 and 8 of the Act, both state and federal courts must defer jurisdiction exclusively to the NLRB.

Sometimes employees have rights under the NLRA even where they are not in a union or attempting to unionize. Section 7 of the NLRA states that: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . " 29 U.S.C. §157. Employees can engage in "concerted activities for the purpose of . . . mutual aid or protection" if they are not in a union. For instance, the Sixth Circuit has found that non-union employees who "left the premises together to carry their grievances . . . to the area manager" engaged in action protected by the NLRA. Vic Tanny Int'l v. NLRB, 622 F.2d 237, 238 (6th Cir. 1980).

Even something as simple as discussing wages in the workplace may be "concerted activity" subject to the jurisdiction of the NLRA. An employer cannot have a blanket rule banning the discussion of wages by employees. "A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees' right to engage in protected concerted activity." NLRB v. Main St. Terrace Care Ctr., 218 F.3d 531 (6th Cir. 2000). However, an employer can place limits on when and where wage discussions can occur.

This complex area of law raises as many questions as it answers: e.g., which activities are covered by the NLRA? Who (e.g., supervisor, employee) is covered by the NLRA? Furthermore, there are a set of additional and complicated necessary criteria that must be met when evaluating whether a case is arguably subject to §7 and 8 of the NLRA. It is always a good idea to consult with an experienced and knowledgeable law professional when you think you may have a legal problem that deserves attention. The NLRA may give you rights you do not know about, but as Lewis learned, choosing the right forum for vindicating those rights is essential.

We Are Ready To Help

The experienced team of labor and employment lawyers at NachtLaw is always ready to help you fight for your employment rights, whether in front of the NLRB, other administrative forum or in court. To get started, an initial consultation with one of our lawyers will give provide the legal advice to pursue and protect your rights.