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.

CAUTION: LIMITS

There are limits to these legal protections. A few ways you can lose protection are by:

• Saying or doing something egregiously offensive, like using racial slurs.
• Making a knowingly and maliciously false statement. Anything you say, you should be able to prove. Calling your employer a thief, for example, is pretty outrageous—unless you can point to wage theft claims upheld by the state.
• Publicly disparaging your employer’s products or services without relating your complaints to any labor controversy. “This hospital is dangerous for patients” could get you in hot water. “This hospital is dangerous for patients because we’re so understaffed” makes the connection.

Insubordination can also be an issue. The Labor Board balances your right to concerted activity with the employer’s right to an orderly workplace. If you get in the boss’s face too much, an angry exchange of words may not be protected.

MAKE CHARGES STICK

Step 1. Develop proofs of concerted activity and mutual aid or protection.

One proof the Chicago Amazon workers used was petitions they had circulated. The several hundred signatures proved this was concerted activity. The workplace safety demands showed it was for mutual aid or protection.

Additional proofs came from social media posts, strike photos, and newspaper articles where the strikers were quoted using the word “we” and describing the safety issues. The news articles also showed that the workers quoted were the same ones Amazon was singling out for discipline.

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Step 2. Do your own investigation.

Labor Board agents are understaffed. It’s typically up to you to gather the evidence to support your charge.

Investigate every fact—the sooner the better. Memory plays tricks as time passes. Ask lots of questions. Get each witness to give you a written statement—typed, and told in chronological order.

Step 3. Write the charge.

Go to nlrb.gov/guidance/fillable-forms and fill out the Charge Against Employer. It’s a one-page form. Deliver (or email) it to your Regional Office of the NLRB.

Step 4. Write a position statement to explain the charge and the supporting law.

Submitting a position statement isn't mandatory, but it's a good idea—since your charge may go into a massive pile of charges to be investigated, and many charges get dismissed for lack of compelling evidence. Your statement helps the board agent get prepared to do a quality investigation.

The statement can be as simple as a chronological outline of the events, pointing out instances of concerted activities and mutual aid, which the person filing will elaborate during the affidavit.

You're not expected to make an elaborate legal argument, but it's helpful to point to previous Labor Board cases that are relevant to your case. For example, if you were interrogated about a Facebook conversation with your co-workers, look for other cases like that.

Finding these isn't as hard as it sounds. The NLRB website has a list of relevant cases—in layman’s terms, not legalese. You could also seek help from a worker center or a university legal assistance clinic.

Another useful reference explaining many past cases is a 2014 article from Plaintiff magazine, “Using the NLRA to enforce the rights of non-union employees,” by Scott Stillman.

Until recently, even many Labor Board agents didn’t recognize that Section 7 rights applied to workers organizing without union backing. But last year the General Counsel issued a memo on “Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines” (GC 21-03).

Read and cite this memo—it’s your guide to what the Labor Board is seeking.

One more resource is the 2010 book NLRA Rights in the Nonunion Workplace, by Kenneth T. Lopatka, an incredible read. It’s meant to warn employers how to avoid trouble. Ironically, I found out about it when an employer accidentally forwarded me a position statement quoting Lopatka.

Step 5. Prepare your witnesses.

Each witness will give an affidavit—where a board agent interviews you and writes up your testimony. Bring your documents of proof, and a list of other witnesses with contact info.

Witnesses should rehearse. Make sure you have an accurate chronology of events, and all the details. If you know which supervisor made a threat, but you don’t know his last name, find out! The board agent will call the supervisor and ask for his version.

After investigating, the NLRB agent will determine whether to issue a complaint.

KEEP ORGANIZING

So what do we get for all this effort? Not justice—don’t rely on the Labor Board to deliver that, especially since employers will appeal cases for years on end.

Ultimately the force that makes change is you and your co-workers organizing to fight the boss. If you have the entire workforce behind you, there’s no limit to what you can get away with. This is, in fact, why we strike.

What we do get, though, is a shield for our organizing. A well-grounded ULP charge can discourage or deter bosses from hiring permanent replacements for strikers, or lead to an NLRB order forcing the employer to reinstate terminated workers.

It can put the brakes on a wildly lawless employer… forcing them to become a crafty, subtle, lawless employer. Hitting the pause button gives newly organizing workers a moment to catch our breath—and continue organizing.

Richard de Vries is a union representative with Teamsters Local 705 in Chicago.