NLRA Rights in the Nonunion Workplace

This reference examines, issue-by-issue, the National Labor Relations Board's dynamic position on the NLRA and its application in the nonunion workplace.

Price: $145 Book

Meet The Author


Most treatises on the National Labor Relations Act (NLRA) concentrate primarily on union-related activity, but the NLRA is applicable in some respects in the nonunion workplace as well. Since so many private-sector employees in the United States are nonunion, a huge vacuum exists for a resource that addresses the NLRA’s potential reach in the nonunion workplace. NLRA Rights in the Nonunion Workplace expertly fills this gap, concentrating exclusively on the NLRA’s broad application outside the union workplace in order to prepare attorneys representing employees or employers, as well as human resources professionals, to spot potential NLRA issues, help them understand the options and associated risks, and provide them with a head start in rendering sound advice to their clients.

The book’s issue-by-issue examination of the Board’s changing position on various issues will enable lawyers to analyze any new decisions or initiatives by the NLRB in order to pinpoint potential new areas of liability and formulate effective strategies. Because the protection against retaliation the NLRA affords employees is more extensive than that of any other anti-retaliation statute, the exploration of critical issues in NLRA Rights in the Nonunion Workplace is equally expansive, and includes discussion of:

  • NLRA threshold requirements for employees to be protected against employer reprisals, the broad contours of that protection once it attaches, and the conditions under which it may be lost
  • The vulnerability of seemingly benign rules in employee handbooks, and the various ways in which a rule or its application can beget liability
  • Employee participation committees and the NLRA’s prohibition against them, as well as the narrow—and easy to violate—exceptions
  • Issues surrounding union organizers applying for jobs in nonunion companies for the purpose of organizing (salting)
  • Potential liability in conducting investigations of employee misconduct, denying an interviewee’s request for coworker assistance, and suspensions pending investigation



  • Ch. 1 - Introduction
  • Ch. 2 - Scope of Federal Labor Law
  • Ch. 3 - Overview of the Core Right and Basic Prohibitions at the Nonunion Workplace
  • Ch. 4 - "Concerted" Activity
  • Ch. 5 - "For Other Mutual Aid or Protection"
  • Ch. 6 - Protected Concerted Activity
  • Ch. 7 - Workplace Rules Vulnerable to Challenge on Overbreadth or Chilling-Effect Grounds
  • Ch. 8 - Denial of Access to Outsiders
  • Ch. 9 - Screening Applicants to Identify Union "Salts"
  • Ch. 10 - Employee Participation Programs
  • Ch. 11 - Investigatory Pitfalls


Bloomberg BNA authors and editors are practicing professionals with insider perspectives and real-life experience. Learn more about this book’s authors and editors.

Kenneth T. Lopatka is an adjunct professor at the Charleston Law School. From August 2007 to January 2009, Mr. Lopatka was Chief Counsel to Robert J. Battista, then Chairman of the NLRB, and also served on then-Chairman Peter Schuamber’s staff.



View full tables of contents and read the book’s preface or introduction.


Read what others have to say about this Bloomberg BNA book.

Kenneth Lopatka’s new work, NLRA Rights in the Nonunion Workplace, is a fine reference for workers in the field and also would make a good supplemental textbook in any labor relations class. In fact, in the hands of a competent instructor it could easily stand as the sole or principal text. This is not a book for the law student but will function very well as instruction for the practitioner who doesn’t wish to spend his life on the phone asking questions of counsel.

The book builds a good bridge between case law and the circumstances generally encountered in organizing situations. Mr. Lopatka has written a book for the field organizer and union staffer who wants to know the perils and possibilities down on the ground, in the nonunion workplace. This book will be a real gem for HR and management-side folks looking to understand how events will shape the firm’s responses—the chapter Screening to identify union “salts” is a virtual textbook on the subject, worth its weight in gold to anyone who has faced that sort of situation (or brought it about).


Michael McGrorty

Instructor, Labor Relations, California State University Dominguez Hills and Labor Analyst/Technical Writer, Piping Industry Progress & Education Trust, Los Angeles, CA.

Most labor law courses and books give only fleeting attention to the Wagner Act rights of nonunion employees. Casebooks usually introduce employees to Washington Aluminum about informal concerted activity, mention NLRB attempts to extend Weingarten rights to unrepresented employees, and discuss the permissible boundaries of employee participation programs, but that is about all. Treatises cover more parts of that topic but usually do so as an afterthought to union‐oriented analyses. NLRA Rights in the Nonunion Workplace is the first comprehensive treatment of all the ways in which the Act protects nonunion employees and limits employers in their dealings with those employees. Broad in scope, meticulously researched, and clearly written, this book belongs in every labor lawyer’s library.

Dennis R. Nolan

Arbitrator and Mediator, Webster Professor of Labor Law Emeritus, University of South Carolina School of Law

This book ably fills a large gap in our understanding of labor and employment law. There is a common misperception that our nation’s primary labor law (the National Labor Relations Act) pertains only to union organizational campaigns and union‐employer collective bargaining. The fact is that the NLRA also applies to other “concerted” activity by employees for “mutual aid and protection” and nonunion employees and employers need to be aware of their rights and obligations under the NLRA. In a comprehensive and lucid volume, Mr. Lopatka has met that need. The book is an important reference work for attorneys, HR professionals, academicians, and interested lay persons. It is a welcome addition to scholarship and a practical guide to a significant aspect of labor and employment law.

Harold Datz

Adjunct Professor, Georgetown University and American University, Washington, DC

Kenneth Lopatka's book is a welcome and necessary addition to the labor law literature. It will come as a surprise to many contemporary business owners and practicing lawyers, as well as academics not versed in traditional labor law, that the NLRA is just as real and relevant in the nonunion workplace as are more familiar laws pertaining to employment discrimination. While there are many resources available to those engaged in collective bargaining or union organizing, the same is not true when it comes to the nonunion workplace. Lopatka's excellent treatment fills this gaping hole on the modern labor law bookshelf.

Daniel S. Bowling, III

Senior Lecturing Fellow, Duke University School of Law

A very helpful and informative guide for both those who have little knowledge of the National Labor Relations Act, and for those who do. It will serve as a useful resource in assessing the rights and obligations owed to non‐represented employees—an area deserving of attention. 

Andrew M. Kramer

Partner, Jones Day, Washington DC