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EMPLOYMENT LAW GUIDE: - page 34 / 134





34 / 134

Labor Relations Board, with court approval, has held that employer policies intended to

prevent employees from engaging in such activities violate the NLRA.

Employees do not have free reign in the manner in which they engage in concerted

activity, and not all concerted conduct may be deemed to be for “mutual aid or protection.”

Examples of such unprotected conduct include:

  • any conduct that involves violence or the threat of violence;

  • conduct aimed at non-employment related grievances;

  • sit down, partial, or intermittent strikes;

  • disclosure of an employer’s confidential business information to individuals

or entities not authorized to receive the information; and

  • certain forms of conduct disparaging management or an employer’s business.

Again, the determination of whether activity will be deemed for “mutual aid or protection” is

highly fact-specific.

The NLRA also places restrictions upon what a non-unionized employer may and

may not do when faced with a union organizing effort. Most notably, an employer may not:

  • threaten reprisal if employees decide to join a union;

  • promise a benefit to not join a union;

  • spy on union activities;

  • question employees about union activity; or

  • make implied threats or promises of benefit.

However, an employer is permitted to:

  • offer opinions about union policies and union leaders;

  • offer facts known about the union or its officers;

  • inform employees about prior experience with unions;

  • inform employees that there is no guarantee that union representation will

result in better wages or benefits; or

  • inform employees of perceived disadvantages of unionization.

The full measure of specialized protections provided to both labor unions and

management in the context of an organizing campaign, election, and collective bargaining


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