No Union? You Still Have a Right to Strike

Last year there were 87 strikes by non-union workers, according to Cornell’s Labor Action Tracker, accounting for one-third of all work stoppages in the U.S.

Even without a union, you have the legal right to organize strikes, job actions, and various protests—and your employer is banned from retaliating against you.

Despite the law, though, many employers will fire troublemakers if they can get away with it. That can bring organizing to a halt.

So if you’re organizing without the protection of a union contract, it behooves you to know your rights and how to enforce them.

With a little practice, you won’t even need a lawyer. You and your co-workers can develop and submit your own unfair labor practice (ULP) charges to the Labor Board.

The Law

Section 7 of the National Labor Relations Act says: “Employees shall have 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 purpose of collective bargaining or other mutual aid or protection.”

“Self-organization” means with or without the backing of a union or worker center. For instance, Amazon workers in Chicago have organized under their own steam as Amazonians United; I recently advised them on how to file ULP charges against employer retaliation.

“Concerted activities” include strikes, but also smaller actions like several employees complaining to the boss together, talking with co-workers on Facebook, circulating petitions, filing wage theft claims as a group, or holding a press conference.

The key word is “concerted,” which means two or more employees are acting together. According to the Labor Board (NLRB), it can even refer to actions by one employee “if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.”

The action must be aimed at improving the working conditions of the group, not just an individual—that’s “mutual aid or protection.” The issue might be safety concerns, bathroom breaks, excessive heat, an unfair firing, or sexual harassment.

Illegal Conduct

Employers are prohibited from interfering with these rights. It’s a ULP for management to:

1. Spy on (or seem to spy on) organizing activities. Spying means doing something out of the ordinary to observe; seeing open union activity in workplace areas frequented by supervisors is not spying.

At Amazon, workers would hang around after work chatting about weekend plans. Once they started organizing, a member of management started photographing them from a distance, using a camera with a long telephoto lens. That’s a ULP.

Spying includes monitoring workers’ Facebook postings—though note the limits below about what you can say about your employer.

2. Photograph or take video of employees engaged in peaceful union or other protected activities.

3. Solicit individual employees to appear in an anti-union campaign video.

4. Enforce work rules that tend to inhibit the exercise of organizing rights—like prohibiting employees from talking about the union during work time, if they’re permitted to talk about other non-work subjects.

At Amazon they posted new rules against congregating or handing out literature in the parking lot. People standing near the doors were accused of blocking entry.

5. Deny off-duty employees access to outside non-working areas of the property, unless business reasons justify it.

6. Prohibit employees from wearing union gear like buttons or T-shirts, unless special circumstances warrant.

7. Convey the message that organizing a union would be futile.

8. Interview employees to prepare the company defense in a ULP case.

9. Fire, suspend, or discipline employees for organizing (or threaten to do so).

10. Coercively question employees about their own or co-workers’ union activities or sympathies.

This blog originally appeared in full at Labor Notes on December 8, 2022. Republished with permission.

About the Author: Richard de Vries is a contributor for Labor Notes.

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Madeline Messa

Madeline Messa se yon 3L nan Syracuse University College of Law. Li gradye nan Eta Penn ak yon diplòm nan jounalis. Avèk rechèch legal li ak ekri pou San Patipri Travay, li fè efò yo ekipe moun ki gen enfòmasyon yo bezwen yo dwe pwòp defansè yo pi byen.