Recognizing Employees’ Rights Under the National Labor
Relations Act


By: Pamela L. Kingsley


       Arizona is a “RIGHT TO WORK” state.  What does that mean; and more importantly, what doesn’t it mean?

       First, it should not be confused with being an “at-will employment” state, which applies to all states except Montana, and means that, if not illegal to do so and some other exception does not apply, employers and employees can terminate their employment relationships at any time for any reason.  Second, it does not mean that Arizona employers can prohibit employees from organizing or joining unions.  That right is secured by the 1935 National Labor Relations Act (the “NLRA”).  Instead, “right to work” signifies that each employee at a workplace can decide whether or not to join the union or pay dues, even when all employees are protected by the collective bargaining agreement negotiated by the union.

       The NLRA also created the National Labor Relations Board (the “NLRB”).  Aside from conducting elections for labor union representation, the NLRB investigates and remedies unfair labor activities.  Its five members and a General Counsel are appointed by the President with Senate consent.

       While application of the NLRA’s protections always has extended beyond taking part in strikes and engaging in collective bargaining, there have been significant changes in the NLRB’s decisions and the focus of the NLRB field offices in processing cases since President Obama initiated appointments during a Senate recess in March 2010.  Among the consequences has been the impact on many of the employer-established policies set out in Arizona’s employee handbooks.  The expressed attitude of NLRB’s local counsel is that every existing, long-standing employee manual contains language in violation of federal law.

       One example of many such violations in policies and manuals is the common practice of prohibiting employees from discussing their salary or wage levels.  Not only do the NLRA’s provisions giving all employees the right to “engage in concerted activities” assure this right, they also preclude employers from prohibiting such discussions during work hours or prohibiting their appearance on Facebook® pages.

       If employees are permitted to discuss non-work-related topics on-the-clock, employees should also be allowed to exchange information relating to their working conditions, including benefits and pay.  And it only takes two employees talking to obtain protection.  If an employee wants to grouse about a supervisor on social media and the audience includes at least one co-employee, the protection prevails.

       One way to avoid NLRB scrutiny, including having to defend against an NLRB charge or lawsuit, is for employers to avoid continued reliance on existing, outdated policies drafting their own based on samples from the Internet or generic office software.  Tiffany & Bosco can provide answers and help ensure compliance with the NLRA or other employment-related laws.
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