NLRA § 7 — Protected Concerted Activity (29 U.S.C. § 157)
Employees shall have the right to self-organize, 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, and shall also have the right to refrain from any or all of such activities.
”Concerted Activity” Standard
Activity is “concerted” when it is:
- Engaged in by two or more employees acting together, or
- Engaged in by one employee acting on behalf of others, with group authorization (Meyers Industries)
Protected Activity Examples
- Organizing campaigns, strikes, work-to-rule
- Complaints about wages, hours, working conditions — even to a supervisor
- Social media posts discussing working conditions (NLRB has consistently protected)
- Refusing to sign confidentiality agreements regarding wages
Unprotected Activity
- Violence or threats of violence
- Wildcat strikes in violation of a valid no-strike clause
- Conduct disloyal to the employer beyond protected criticism (Jefferson Standard)
- Harassment
Employer Violations
Disciplining or discharging employees for § 7 activity is an unfair labor practice under § 8(a)(1). The NLRB uses the Wright Line test for mixed-motive cases: (1) Board proves § 7 activity was a motivating factor; (2) burden shifts to employer to show it would have taken same action regardless.