Section 7 of the National Labor Relations Act guarantees employees 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 purposes of collective bargaining or other mutual aid or protection….” Congress intended that Section 7 of the Act be interpreted broadly and in order to protect the exercise of these rights Congress made it an unfair labor practice for an employer to “interfere with, restrain or coerce employees” in the exercise of all rights guaranteed by Section 7.
In fact, the ambit of the rights protected by Section 7 of the National Labor Relations Act is so broad that employees need not be represented by a union in order to exercise those rights. Rather, rights afforded by the National Labor Relations Act are available to all employees, regardless of whether or not they are members of a union or work in an environment that does not enjoy the benefits of union representation. Indeed, employees are affirmatively protected by the National Labor Relations Act even if their “concerted activity” is exercised outside the scope of attempting to organize a union.
These principles are best illustrated by cases decided by the National Labor Relations regarding the effect of employer policies, work rules and/or employee handbooks which purport to prohibit the exercise of Section 7 by employees.
Generally, the Board looks to whether a work rule explicitly restricts Section 7 rights. However, even if a work rule does not explicitly restrict the exercise of rights guaranteed under the National Labor Relations Act, it may still run afoul of the Act and constitute an unfair labor practice if the rule in question: (1) could be reasonably construed by employees to prohibit Section 7 activity, (2) the rule is promulgated in response to the union activity of employees, or (3) the rule has in fact been used by the employer to restrict the exercise of Section 7 rights. Further, the National Labor Relations Board construes ambiguous employer work rules against the employer.
Thus, for example, in the context of employer work rules which seek to prohibit employees from sharing so-called “confidential” information, the Board has long held that employees have the right to share information regarding their wages and working conditions not only amongst themselves, but also with non-employees. Thus, employer confidentiality provisions that seek to prohibit the dissemination of such information restrict the Section 7 rights of employees and constitute an unfair labor practice.
Likewise, the Board has also found unlawful employer work rules that seek to prohibit employees from distributing literature in non-work areas during non-work times. An employer work rule that prohibits employees from making statements that “damage the company” also chill employees in the exercise of their Section 7 rights. Indeed, inasmuch as all employees have a right to strike, employer work rules that prohibit employee from engaging in strikes or that provide that employees will be discharged for engaging in strikes are generally unlawful and restrain and coerce employees in the exercise of their statutory rights.