No Union, No Problem?

August 9, 2012

The National Labor Relations Board’s recent efforts to increase awareness of protected concerted activity raise the potential threat of non-union employees being afforded union protections under Section 7 of the National Labor Relations Act.

On June 18, 2012, the National Labor Relations Board (“NLRB”) launched a new website designed to increase public awareness of the protections afforded to concerted activities regardless of whether a union exists.  Under Section 7 of the National Labor Relations Act, the right allows for nonunionized employees to engage in concerted activities in order to provide mutual aid and protection.  Employees must demonstrate that the activity was for the purpose of inducing or preparing for group action to correct a grievance or a complaint.[1]

The right for non-union employees to seek protection under Section 7 for concerted activities has been around for decades, but even after years of support from the Supreme Court, actions enforcing this protection represent only about 5% of the NLRB’s caseload.[2]  The launch of the NLRB’s new website indicates that the NLRB is looking to increase that caseload.  Mark Pearce, chairman of the NLRB, admitted as much, saying, “Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”[3]

A growing trend and the current job market conditions seem to support Pearce’s stance.  Last month a car dealership in Chicago was hit with a Section 7 complaint from the NLRB after the dealership terminated an employee for posting disparaging photos and comments about the dealership on Facebook.  The employee was apparently upset due to the quality of refreshments available at a company promotional event.  The complaint alleges that because the Facebook postings were a discussion between employees about the terms and conditions of their employment, they constituted a concerted activity and are protected under Section 7 of the National Labor Relations Act.  The court is expected to hear arguments on this case in late July.

If the NLRB is successful in their awareness campaign, there will be an increase in grievances filed by employees in nonunionized workplaces, similar to the car dealership in Chicago.  Moreover, with the recent trend of states taking steps to become right-to-work states, the NLRB could use this information as a way to regain a foothold and help employees form unions within their businesses.  In either case the result is that companies that lack experience with union protection laws could be subjected to them just the same.  We at Rock Fusco & Connelly not only have experience counseling and litigating in union matters, but we also offer training to clients wanting to stay a non-union business.


[1] Indiana Gear Works v. N. L. R. B., 371 F.2d 273, 276 (7th Cir. 1967).

[2] See N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (2d Cir. 1942); and  Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749 (4th Cir. 1949)

[3] National Labor Relations Board Website, NLRB launches webpage describing Protected Concerted Activity, available at (June 18, 2012).