Labor Law Guide: NLRA, Union Organizing, Collective Bargaining, and Employee Rights
When employees talk about their wages, investigate their working conditions, or sign a petition demanding safer equipment, they are exercising rights protected by federal labor law. These rights exist whether or not the employees belong to a union. Many employers and employees alike misunderstand the scope of the National Labor Relations Act (NLRA), assuming that labor law applies only to unionized workplaces. Nothing could be further from the truth.
The NLRA, enacted in 1935 as part of the New Deal, guarantees employees the right to organize, bargain collectively, and engage in concerted activity for mutual aid or protection. The National Labor Relations Board (NLRB) administers the NLRA, conducts representation elections, and adjudicates unfair labor practice charges. The Taft-Hartley Act of 1947 amended the NLRA to prohibit certain union practices and to permit states to enact right-to-work laws.
Employee Rights Under the NLRA
Section 7 Rights
Section 7 of the NLRA grants 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 purpose of collective bargaining or other mutual aid or protection. Concerted activity—activity engaged in by two or more employees or by a single employee seeking to initiate group action—is protected regardless of whether the workplace is unionized.
Protected Concerted Activity
The NLRB defines protected concerted activity broadly. Employees discussing wages, circulating petitions about working conditions, complaining about safety hazards, or refusing to work in unsafe conditions are generally engaged in protected activity. Social media posts complaining about working conditions with co-workers responding are protected if they relate to terms and conditions of employment. The NLRB’s Purple Communications (2014) decision protected employee use of employer email systems for Section 7 communications during non-working time.
Union Organizing
Representation Election Process
Union organizing begins when employees or a union file a petition for representation election with the NLRB. The petition must be supported by authorization cards signed by at least 30% of employees in the proposed bargaining unit. The NLRB Regional Director determines the appropriate bargaining unit based on community of interest factors including wages, hours, supervision, and job functions. The Cemex Construction Materials Pacific, LLC (2023) decision shifted the election framework, requiring employers to recognize unions without an election when employees have designated a union as their representative.
Employer Conduct During Campaigns
Employers may express their views about unionization as long as they do not threaten, coerce, or promise benefits. The NLRB’s Stern’s Supply (2022) standard evaluates whether employer communications contain implied threats. Prohibited conduct includes interrogating employees about union activity, surveilling union meetings, promising wage increases conditioned on rejecting the union, and discharging union supporters. Discriminatory discharge of union supporters violates Section 8(a)(3) of the NLRA.
Collective Bargaining
Duty to Bargain in Good Faith
Section 8(d) of the NLRA requires employers and unions to bargain in good faith with respect to wages, hours, and other terms and conditions of employment. Good faith bargaining requires meeting at reasonable times, conferring in good faith, and executing a written contract if agreement is reached. Surface bargaining—going through the motions without intent to reach agreement—violates the duty to bargain.
Mandatory vs. Permissive Subjects
Mandatory subjects of bargaining include wages, hours, overtime, work schedules, health insurance, pensions, and workplace safety rules. Permissive subjects—including the scope of the bargaining unit, the product line produced, and the decision to advertise—are not required to be bargained but may be discussed by mutual agreement. Illegal subjects, such as a closed shop agreement in a right-to-work state, cannot be bargained.
Strikes and Lockouts
Economic strikers—employees who strike over wages, hours, or working conditions—may be permanently replaced by the employer. Unfair labor practice strikers—those who strike to protest employer violations—are entitled to reinstatement upon unconditional offer to return to work. The employer may lock out employees as an economic weapon in bargaining impasse, as long as the lockout is not motivated by anti-union animus.
Unfair Labor Practices
Employer Unfair Labor Practices
Section 8(a) of the NLRA prohibits employer unfair labor practices including interference with Section 7 rights, domination of labor organizations, discrimination to encourage or discourage union membership, retaliation for filing charges with the NLRB, and refusal to bargain in good faith. The NLRB General Counsel issues complaints and prosecutes unfair labor practice cases before NLRB Administrative Law Judges.
Union Unfair Labor Practices
Section 8(b) prohibits union unfair labor practices including restraining or coercing employees in the exercise of Section 7 rights, causing an employer to discriminate against an employee, refusing to bargain in good faith, engaging in secondary boycotts, and charging excessive or discriminatory initiation fees. The Taft-Hartley Act added these provisions to balance the NLRA’s original focus on employer misconduct.
Right-to-Work Laws
Twenty-six states have enacted right-to-work laws prohibiting agreements that require union membership or payment of union dues as a condition of employment. In right-to-work states, employees in unionized workplaces cannot be required to pay union dues or fees. The Taft-Hartley Act authorized right-to-work laws through Section 14(b), which permits states to prohibit union security agreements. The decline in union density has been more pronounced in right-to-work states.
Enforcement and Remedies
NLRB Process
Unfair labor practice charges must be filed within six months of the alleged violation. The NLRB Regional Director investigates the charge and determines whether to issue a complaint. Cases are heard by ALJs with appeal to the five-member NLRB and then to federal courts of appeals. NLRB remedies include cease-and-desist orders, reinstatement with back pay, and notice posting requiring the employer to inform employees of their rights.
Back Pay and Reinstatement
The NLRB seeks back pay for employees discriminatorily discharged, minus interim earnings or earnings the employee could have earned with reasonable diligence. Interest accrues quarterly. The Board can also require job reinstatement and expungement of disciplinary records. In Thryv, Inc. v. NLRB (2025), the Supreme Court addressed the scope of NLRB remedial authority.
Labor Law in the Modern Workplace
The rise of remote work, gig economy platforms, and algorithmic management has created new labor law challenges. The NLRB and courts are grappling with whether gig workers are employees or independent contractors under the NLRA. The joint employer standard—determining when a company that contracts with another business is a joint employer of that business’s workers—has shifted with each administration. The NLRB’s 2023 standard adopted a broad “actual control plus reserved control” test that expanded joint employer liability.
Social media policies, electronic monitoring, and workplace surveillance raise novel Section 7 issues. The NLRB has held that employer policies prohibiting employees from discussing wages or working conditions on social media violate the NLRA. Work rules that employees would reasonably interpret as restricting Section 7 rights are unlawful under the Stericycle (2023) standard, which requires employers to justify work rules that would chill protected activity. The changing nature of work continues to test the boundaries of a statute written in 1935.
Union Membership Trends
Union membership in the United States has declined from a peak of 35% of private-sector workers in the 1950s to approximately 6% today. However, public opinion of unions has become more favorable in recent years, with Gallup reporting that 67% of Americans approve of labor unions—the highest level since the 1960s. Union organizing campaigns at Amazon, Starbucks, Apple, and other major employers have brought renewed attention to labor organizing despite mixed results in representation elections.
The PRO Act (Protecting the Right to Organize Act), passed by the House but not enacted by the Senate, would significantly amend the NLRA by strengthening penalties for employer violations, permitting secondary boycotts, narrowing independent contractor classifications, and overriding right-to-work laws. State-level labor law developments have also accelerated, with some states expanding collective bargaining rights and others restricting public-sector union activity. The labor law landscape continues to evolve with shifting political and economic conditions.
Frequently Asked Questions
Can non-union employees engage in protected concerted activity? Yes. Section 7 rights apply to all employees under the NLRA, regardless of union membership. Any two or more employees acting together to improve working conditions are engaged in protected concerted activity. A single employee asking co-workers to join a complaint is also protected.
What is the difference between the NLRB and the Department of Labor? The NLRB administers the NLRA and handles union elections and unfair labor practice charges. The Department of Labor enforces wage and hour laws (FLSA), workplace safety (OSHA), and other employment statutes. State labor agencies enforce state-specific labor laws. See our employment law guide for wage and hour requirements.
Can employers require employees to attend anti-union meetings? The NLRB’s Amazon.com Services LLC (2024) decision restricted mandatory captive audience meetings where employers compel employees to listen to anti-union messages. Prior precedent had permitted such meetings. The issue remains subject to litigation and potential review.
What are the penalties for violating the NLRA? The NLRB primarily seeks equitable remedies—reinstatement and back pay—rather than punitive damages. Federal courts can enforce NLRB orders and grant injunctive relief. Willful violations can result in contempt proceedings. Business compliance programs should include NLRA compliance training for managers and supervisors.