Small-Business Owners Shouldn't Wait For Employee Free Choice Act To Think About Unions And Strikes

The debate over the Employee Free Choice Act (read more here) has made many business owners think about the complicated issue of unionization. But what they are probably not thinking about are the numerous federal rules that govern labor relations for business owners regardless of whether or not their businesses are unionized.

"You non-union employers probably don't think about the National Labor Relations Act, because you don't think it applies to you. That's a myth," says Karen Harned, executive director of the Small Business Legal Center at the National Foundation of Independent Business.  Today she hosted a webinar for small-business owners about labor laws, and I listened in.

The NLRA applies to any business that "affects commerce"--so pretty much any business, regardless of number of employees, can be construed to fall under the law. Any activites that would "intimidate," "coerce," or "discourage" an employee from forming or joining a union (or similarly coerce them into joining a union) are deemed "unfair labor practices" under the NLRA, according to Harned. An example of how an employer could intimidate his or her employees is through a broad "anti-loitering" rule that would seek to prevent workers from planning to organize. Anti-loitering rules can be done, but they must be narrowly tailored to avoid running into the NLRA. To continue this example, if you have anti-loitering rules in place at your business, they must only apply to the interior of the working areas, they must be clearly communicated, and must apply to all off-duty employees seeking access to the working area.

What are these "unfair" practices more specifically? It gets a bit hazy. Employees have four broad categories of rights under the law: the right to strike, the right to conduct policitcal activities (like demonstrating outside a plant, something that overly broad anti-loitering rules could be meant to restrict), the right to complain, and a category called "Weingarten rights"--the right for unionized employees to have a witness in disciplinary interviews.

That first right--the right to strike--is the one that matters probably the most to owners of non-unionized small businesses. That's because employees can strike regardless of whether or not they belong to a union. Strikes by non-unionized workers are dubbed "wildcat strikes."

Harned cautions that if you're a business owner and such a strike happens, "do NOT take action.  Call a labor attorney first."

With how complicated the federal labor laws are, you're probably going to need to call a lawyer if any practice is in doubt.