Summary. Most employers first encounter labor law after a petition is filed, when the rules that were broken were broken months earlier by managers who had never heard of them. This article explains Section 7 rights, which apply to nearly all private-sector employees whether or not a union is involved, and the protected concerted activity doctrine reaching ordinary conversations about pay. It walks a campaign from card signing through election, covering what supervisors may and may not say, the solicitation and distribution rules that must exist beforehand, and the bargaining orders that follow serious violations — then unit determinations, supervisor status, good-faith bargaining, strikes, Weingarten, decertification, and the handbook rules that generate findings at non-union employers.

A 300-employee food processing company learns on a Thursday that a union has filed a representation petition. The general manager's first instinct is entirely reasonable and almost entirely unlawful.

He calls each shift supervisor and asks them to find out who signed cards. He tells two long-tenured employees that if the union comes in, the company will "have to look hard at the second shift." He announces that the wage increase scheduled for the following quarter will be moved up to next month. And he prohibits any discussion of the union on company property at any time.

Four separate unfair labor practices in an afternoon: coercive interrogation, a threat of reprisal, a grant of benefits to influence the election, and an overbroad no-solicitation rule. Each is a violation of Section 8(a)(1). Together they can support setting aside an election the company might otherwise have won, and in a serious case can support a bargaining order requiring the company to recognize the union without an election at all.

The National Labor Relations Act is not intuitive. Conduct that feels like ordinary management — asking questions, predicting consequences, being generous — is precisely what the statute restricts during a campaign. Employers that learn the rules during a campaign learn them too late.

The short answer

Section 7, 29 U.S.C. § 157, gives employees the right to self-organize, form, join, or assist labor organizations, bargain collectively through representatives of their own choosing, and engage in other concerted activities for mutual aid or protection — and the right to refrain from all of it.

Section 7 applies to almost all private-sector employees, union or not. An employer with no union and no campaign can violate the Act through a handbook provision.

Section 8(a) lists employer unfair labor practices:

  • 8(a)(1) — interfering with, restraining, or coercing employees in the exercise of Section 7 rights. Every other violation also violates 8(a)(1) derivatively.
  • 8(a)(2) — dominating or interfering with a labor organization, which is why employer-created "employee committees" that address working conditions are legally dangerous.
  • 8(a)(3) — discrimination in hire or tenure to encourage or discourage union membership.
  • 8(a)(4) — retaliating for filing charges or testifying.
  • 8(a)(5) — refusing to bargain in good faith.

The teaching mnemonic: supervisors may not Threaten, Interrogate, Promise, or Surveil (TIPS). They may discuss Facts, Opinions, and Experiences (FOE).

Excluded from coverage: supervisors, managers, independent contractors, agricultural laborers, domestic workers, public employees, and employees covered by the Railway Labor Act.

Section 7 and protected concerted activity

The most consequential misunderstanding in labor law is that the NLRA is about unions. It is about concerted activity.

Activity is concerted when it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee themselves. It includes activity that seeks to initiate, induce, or prepare for group action, and activity that brings a truly group complaint to management's attention.

It is protected when it is for mutual aid or protection — relating to wages, hours, or other terms and conditions of employment.

Examples that are protected, in a workplace with no union anywhere in sight:

  • Two employees discussing their salaries in the break room.
  • An employee posting on social media about scheduling practices, where coworkers engage.
  • A group email to management complaining about a new attendance policy.
  • Circulating a petition about parking or safety.
  • Discussing working conditions with a reporter, in most circumstances.

Activity loses protection when it is disloyal in a way that disparages the employer's product without relation to a labor dispute, involves egregious misconduct, or breaches a legitimate confidentiality interest that the employer can establish. The Board's approach to abusive conduct in the course of protected activity has shifted between standards; the current framework applies the Wright Line burden-shifting analysis to discipline for such conduct, asking whether the employer would have taken the same action absent the protected activity.

Why this matters to non-union employers. The most common NLRA violation at a company with no union is a handbook rule — confidentiality of wages, a broad social media policy, a civility rule, a prohibition on discussing investigations — that a reasonable employee would read as restricting Section 7 activity. Under the Board's current approach, a rule that has a reasonable tendency to chill Section 7 rights is presumptively unlawful, and the employer must show the rule advances a legitimate and substantial business interest that cannot be achieved with a more narrowly tailored rule.

Before a campaign: what to have in place

Almost everything an employer can lawfully do must be done before organizing begins. Once a campaign starts, changing rules and granting benefits become violations.

A lawful solicitation and distribution policy. The rules are precise:

  • An employer may prohibit solicitation during working time — the time when either the soliciting or the solicited employee is supposed to be working. It may not prohibit solicitation during non-working time (breaks, meals, before and after shifts), even in working areas.
  • An employer may prohibit distribution of literature during working time and in working areas, because of the litter and safety rationale.
  • The policy must be facially neutral and consistently enforced. An employer that permits Girl Scout cookie sales, charity drives, and birthday card circulation cannot suddenly enforce a no-solicitation rule against union activity — disparate enforcement is itself a violation.
  • Non-employee organizers may generally be excluded from private property, Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), unless the employees are inaccessible by reasonable alternative means or the employer discriminates against union solicitation while allowing others.
  • Email and other employer systems: Board doctrine has moved in both directions. The current framework generally permits an employer to restrict use of its systems to business purposes, provided the restriction is nondiscriminatory. Employers relying on this should confirm the current standard and enforce consistently.

A lawful handbook. Review for: wage confidentiality provisions, blanket confidentiality of "company information," social media rules, civility and respectful-workplace rules drafted so broadly they reach protected complaints, media contact prohibitions, blanket bans on recording, arbitration agreements that could be read to waive the right to file Board charges, and non-disparagement and confidentiality clauses in severance agreements that restrict Section 7 rights.

Trained supervisors. Supervisors are agents of the employer, and their statements bind it. A single supervisor's threat can set aside an election. Training should happen annually, not when a petition arrives.

Good management. Unremarkable, and the most effective. Campaigns succeed where employees feel unheard on scheduling, favoritism, safety, or pay equity. A functioning complaint process that resolves problems does more than any campaign response.

During a campaign: TIPS and FOE in detail

What supervisors may not do

Threaten. No statements that unionization will cause job loss, plant closure, reduced benefits, loss of flexibility, or stricter enforcement. The line between an unlawful threat and a lawful prediction is narrow: under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), a prediction must be carefully phrased on the basis of objective fact to convey a demonstrably probable consequence beyond the employer's control. "If the union comes in, we may have to relocate" is a threat. "Our competitor in Ohio closed after unionizing" is a fact but risks being heard as a threat if delivered as a warning.

Interrogate. No questioning about union sympathies, meeting attendance, card signing, or who is involved. Even a friendly "so what do you think about all this?" from a supervisor is coercive interrogation in context. Do not ask employees to report on coworkers.

Promise or grant benefits. No new benefits, wage increases, or improvements announced or granted during a campaign. The classic case is NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): conferring benefits during a campaign is unlawful because employees understand the implication — "the fist inside the velvet glove." Exception: benefits already decided and scheduled before the campaign should proceed on schedule, with the timing documented in advance. Withholding a scheduled increase because of the campaign is equally unlawful.

Surveil or create the impression of surveillance. No watching union meetings, photographing handbilling, monitoring social media for union activity in a way that departs from normal practice, or telling an employee "we know who's been talking to the organizers."

Also unlawful: soliciting grievances during a campaign with an express or implied promise to remedy them; disparate discipline; changing work assignments or schedules in response to activity; polling employees about union support without the strict Struksnes safeguards; and denying access or benefits available to others.

What supervisors may do

Facts. Explain what a union is, how dues work, what the authorization card actually authorizes, what the election process involves, what collective bargaining is and that it starts from scratch rather than from current terms, and that a contract requires agreement by both sides.

Opinions. State that the company prefers to deal with employees directly, that it does not believe a union is in employees' interests, and why.

Experiences. Describe the company's actual history, and publicly available facts about the union — its financial reports, strike history, and dues structure.

Section 8(c), 29 U.S.C. § 158(c), protects the expression of views, argument, or opinion so long as it contains no threat of reprisal or force or promise of benefit. That is a real protection, and employers with disciplined messaging use it fully.

Captive audience meetings. Mandatory meetings on paid time to discuss unionization were permitted for decades. The Board's current position treats mandatory attendance as coercive, and several states have enacted laws restricting mandatory meetings on political or religious matters including unionization. Confirm the current federal standard and the applicable state law before scheduling one, and consider voluntary meetings with express assurance that attendance is optional and non-attendance carries no consequence.

The 24-hour rule. Under Peerless Plywood, neither party may make an election speech on company time to a massed assembly of employees within 24 hours of the election.

The election process

Authorization cards. Organizing typically begins with employees signing cards designating the union as bargaining representative. A union may file a representation petition with a showing of interest from at least 30 percent of the unit.

The petition and the election. The Board's election rules have been amended repeatedly, compressing and then extending the timeline. Under the compressed framework, the period from petition to election can be a matter of weeks. Employers should assume they have very little time, which is why preparation must precede the petition.

The Excelsior list. Within the prescribed period after a direction of election, the employer must provide a list of eligible voters with names, home addresses, available personal email addresses and phone numbers, work locations, shifts, and classifications.

The election. A secret ballot conducted by the Board. The union wins with a majority of votes cast, not a majority of the unit. Turnout matters enormously.

Objections. Either party may object to conduct affecting the results. Where objectionable conduct occurred, the Board may set aside the election and direct a rerun.

The Cemex framework. In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), the Board held that when a union requests recognition on the basis of majority support, the employer must either recognize and bargain or promptly file an RM petition seeking an election. If the employer commits an unfair labor practice requiring the election to be set aside, the Board will dismiss the petition and issue a bargaining order. This substantially raises the cost of campaign misconduct, and its application continues to be litigated. Confirm its current status before advising.

Gissel bargaining orders. Independently, Gissel authorizes a bargaining order without an election where the employer's unfair labor practices are so serious and pervasive that a fair election is unlikely.

Bargaining units and supervisor status

The unit determines who votes and who is covered. The Board asks whether employees share a community of interest, considering skills and duties, terms and conditions of employment, supervision, functional integration, contact and interchange with other employees, and bargaining history.

The Board's approach to smaller units within a larger workforce has shifted between standards — at times requiring an employer challenging a proposed unit to show that excluded employees share an overwhelming community of interest, at times applying a traditional analysis. Because unit scope frequently decides an election, this is the first issue counsel should analyze.

Supervisor status matters twice: supervisors are excluded from the unit, and their conduct binds the employer. Section 2(11), 29 U.S.C. § 152(11), defines a supervisor as one with authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action — if the exercise requires the use of independent judgment.

The analysis is functional, not titular. A "lead" with a title and no independent judgment is not a supervisor; a working foreman who assigns work using real discretion may be. Getting it wrong means either that a supervisor voted (a potential basis for objections) or that the employer is bound by statements it did not know were attributable to it.

The duty to bargain

Once a union is certified or recognized, the employer must bargain in good faith over mandatory subjects — wages, hours, and other terms and conditions of employment, § 8(d).

Mandatory subjects include pay, benefits, hours, scheduling, seniority, discipline, grievance procedures, safety, subcontracting that affects unit work, and, in many circumstances, the effects of a decision on employees.

Permissive subjects — internal union affairs, the identity of bargaining representatives, unit scope changes — may be discussed but cannot be insisted upon to impasse.

Illegal subjects cannot be agreed to at all.

Good faith requires meeting at reasonable times, providing relevant information on request (presumptively relevant for unit employees' terms and conditions), and approaching negotiations with a sincere desire to reach agreement. It does not require agreeing to any proposal or making a concession, § 8(d). Hard bargaining is lawful; surface bargaining — going through the motions with no intention of agreement — is not.

Unilateral changes. After certification and before a contract, an employer generally may not change mandatory terms without bargaining to agreement or a lawful impasse. The exception for changes consistent with an established past practice has been narrowed and broadened repeatedly.

First contracts are hard. A substantial share of newly certified units never reach one. Bargaining typically takes a year or more, and the statutory framework contains no mechanism compelling agreement, which is why first-contract arbitration proposals recur in legislative debate.

Successorship. A purchaser of a business that hires a majority of its workforce from the predecessor's unit employees may be a successor obligated to recognize and bargain with the incumbent union — although generally not bound by the predecessor's contract. A buyer that intends to avoid successorship must plan hiring carefully, and the Burns and Fall River line of cases governs.

Strikes, lockouts, and Weingarten rights

Economic strikes are protected; strikers may be permanently replaced but retain reinstatement rights to vacancies as they arise. Unfair labor practice strikes — caused or prolonged by employer violations — carry a right to immediate reinstatement upon an unconditional offer to return, displacing replacements.

Unprotected activity includes strikes in breach of a no-strike clause, intermittent or partial strikes, slowdowns, sit-downs, and secondary activity prohibited by § 8(b)(4).

Lockouts are lawful for legitimate bargaining objectives after impasse, and in some circumstances before, provided they are not motivated by hostility to protected activity.

Weingarten rights, from NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): a unionized employee may request the presence of a union representative at an investigatory interview the employee reasonably believes may result in discipline. The employer need not inform the employee of the right; on request, it may grant it, discontinue the interview, or offer the employee the choice of continuing without representation. The Board has reversed itself several times on whether the right extends to non-union employees; confirm the current rule.

Decertification and employer withdrawal

Employees may file a decertification petition with a 30 percent showing, subject to timing bars:

  • Certification year bar — no petition for one year after certification.
  • Contract bar — a valid contract of up to three years bars a petition except during a defined open window before expiration.
  • Election bar — no second election in the same unit within twelve months.

An employer may withdraw recognition only on actual loss of majority support as of the withdrawal date, and doing so is legally hazardous. Under current framework, an employer facing evidence of loss of support generally should file an RM petition for an election rather than withdrawing unilaterally. An employer may not assist a decertification effort; doing so converts an employee-driven petition into employer conduct that taints it.

A worked example

Halstead Millwork, 210 employees, receives a petition on a Monday for a unit of production and maintenance employees.

What counsel did in week one:

  • Instructed managers, in writing, on TIPS and FOE, with a script and a rule that no supervisor answers a question they are unsure about.
  • Audited the handbook and suspended enforcement of a no-solicitation policy that barred solicitation "on company property," replacing it with a working-time rule.
  • Confirmed that a wage increase approved by the board in January would proceed on its scheduled April date, with the January board minutes preserved to prove the timing predated the campaign.
  • Analyzed supervisor status for 14 "lead" positions; determined 9 lacked independent judgment and were properly in the unit, and instructed those 9 to say nothing on the company's behalf.
  • Analyzed the proposed unit and stipulated rather than litigating scope, because the analysis showed a hearing would delay the election without improving the unit.

What went wrong anyway. A second-shift supervisor told an employee that "the owner will sell before he deals with a union." That single statement, if credited, is a threat under § 8(a)(1) and is objectionable conduct.

The outcome. The union lost 96-84. The union filed objections based on the supervisor's statement. The Board's regional office investigated. Because the statement was isolated, made by a low-level supervisor to one employee, and the margin was 12 votes, the objection was overruled — a result that depended entirely on containment.

The counterfactual. Had the general manager also interrogated employees, moved up the wage increase, and enforced the old no-solicitation rule against union literature while permitting charity solicitations, the accumulation would likely have set aside the election and, under Cemex, could have supported a bargaining order.

A supervisor briefing script

Give supervisors five sentences and a rule.

  1. "You may tell employees the facts about how unions work and that the company would prefer to keep working with them directly."
  2. "You may not threaten anyone with any consequence, and you may not predict that bad things will happen."
  3. "You may not ask anyone what they think about the union, whether they signed a card, or who is involved."
  4. "You may not promise or give anything new — no raises, no schedule changes, no new benefits."
  5. "You may not watch union meetings, photograph handbilling, or say anything that suggests we know who is involved."

The rule: if an employee asks a question you are not certain how to answer, say "That's a fair question and I want to give you an accurate answer — let me find out." Then call human resources. There is no penalty for a delayed answer and a very large one for a wrong answer.

Frequently asked questions

Can we tell employees we do not want a union? Yes. Section 8(c) protects the expression of views without threats or promises.

Can we prohibit union talk at work? You can prohibit solicitation during working time, neutrally and consistently. You cannot prohibit it during non-working time, and you cannot enforce a rule against union solicitation while allowing other solicitations.

An employee is organizing on Facebook. Can we discipline them? Almost certainly not if the activity is concerted and concerns terms and conditions of employment. Monitoring it may itself be unlawful surveillance.

We planned a raise before this started. Do we go ahead? Yes — and document that the decision predated the campaign. Withholding it is as unlawful as granting a new one.

Can we fire the lead organizer for poor performance? Only if you would have done so anyway and can prove it. Under the Wright Line framework, once protected activity is shown to be a motivating factor, the employer must prove it would have taken the same action regardless. Documented, consistent performance management before the campaign is the only real defense.

Does the NLRA apply to us if we have no union? Yes. Section 7 protects concerted activity regardless, and most non-union violations are handbook rules.

What is a card check? Recognition based on signed authorization cards rather than an election. Voluntary recognition is lawful; under Cemex, an employer that declines must promptly petition for an election.

Can we hold a mandatory meeting about the union? The Board's current position treats mandatory attendance as coercive, and some states restrict such meetings. Check both before scheduling, and consider a genuinely voluntary meeting.

Conclusion

Labor law punishes improvisation. Nearly every serious violation is committed by a supervisor who was trying to help — reassuring an employee, answering a question honestly, or offering something to keep a good worker.

The employers that come through campaigns intact are not the ones with the best arguments. They are the ones that had a lawful solicitation policy in place a year earlier, trained their supervisors before there was anything to talk about, documented compensation decisions when they were made, and knew which of their "leads" were statutory supervisors.

And underneath all of it sits the unglamorous fact that organizing campaigns start where employees believe no one is listening. The most effective labor relations program is a workplace where that is not true.

Procedure: how a charge becomes a case

Understanding the machinery helps calibrate risk, because the NLRA's remedies are modest and its timelines are long.

Filing. Any person may file an unfair labor practice charge with a regional office. The statute of limitations is six months from the violation, § 10(b), and it is strictly applied.

Investigation. A Board agent takes affidavits and gathers documents. The employer's response is voluntary, but declining to cooperate means the region decides on the charging party's evidence alone. The great majority of charges are withdrawn, settled, or dismissed at this stage.

Complaint and hearing. If the region finds merit, the General Counsel issues a complaint, and the case is tried before an administrative law judge. The judge issues a decision; exceptions go to the Board in Washington; the Board's order is enforceable only through a petition to a court of appeals, which may take years.

Section 10(j) injunctions. The Board may seek a federal court injunction pending resolution in serious cases — most often discharges of organizers early in a campaign. Starbucks Corp. v. McKinney, 602 U.S. 339 (2024), held that district courts must apply the traditional four-factor preliminary injunction test rather than a more permissive standard, which raises the bar for such relief.

Remedies. Historically limited to make-whole relief: reinstatement, backpay with interest, and a notice posting. The Board expanded the categories of compensable harm in Thryv, Inc., 372 NLRB No. 22 (2022), to include direct or foreseeable pecuniary harms, and that expansion has been contested in the courts. There are no punitive damages and no compensatory damages for emotional distress under the Act.

Constitutional challenges. Following SEC v. Jarkesy, 603 U.S. 109 (2024), and related litigation, respondents have raised structural challenges to the Board's administrative adjudication and to removal protections for Board members and administrative law judges. Several are pending. The practical significance for an employer is that the enforcement landscape is genuinely unsettled, which counsels against building a strategy on any single doctrinal assumption.

Settlement. Most meritorious charges settle, usually with backpay, reinstatement where applicable, and a notice posting. Settlement avoids a Board order and the precedential exposure of a decision, and regions have wide latitude to approve informal settlements.

Multi-employer and industry-specific wrinkles

Construction. Section 8(f) permits pre-hire agreements in the construction industry without a demonstrated majority — an exception found nowhere else in the Act. Whether a relationship is an 8(f) relationship or a full 9(a) bargaining relationship determines whether the employer may walk away at contract expiration.

Healthcare. The Act contains special rules for healthcare institutions, including additional notice requirements before a strike or picketing (a ten-day notice under § 8(g)) and Board-defined bargaining units for acute care hospitals.

Multi-employer bargaining. Employers may bargain jointly through an association. Withdrawal from a multi-employer unit is permitted only before negotiations begin, absent unusual circumstances or mutual consent.

Franchising and joint employment. Whether a franchisor or a company using staffing agency labor is a joint employer — and therefore obligated to bargain over the supplied workers' terms — has been the single most volatile question in Board law, with the standard shifting between direct-and-immediate control and reserved-or-indirect control across successive rulemakings and decisions, some of which have been vacated. Any business relying on contracted labor should confirm the operative standard before assuming it is outside the unit.

Twelve handbook provisions worth auditing today

Non-union employers rarely face an organizing campaign. Nearly all of them have a handbook, and the handbook is where unfair labor practice findings actually come from. These are the provisions most frequently found unlawful, with the fix in each case.

  1. Pay confidentiality. "Employees may not discuss compensation." Unlawful on its face. Delete it. Employers may protect payroll records held by HR; they may not restrict employees from discussing their own pay.
  2. Blanket confidentiality of "company information." Narrow it to genuinely confidential business information — trade secrets, customer data, financial results before release — and expressly exclude wages, hours, and working conditions.
  3. Social media policies. Prohibit disclosure of confidential information and unlawful harassment; do not prohibit "negative comments about the company" or require that posts be "professional and respectful" without qualification.
  4. Civility and respectful workplace rules. These are defensible when tied to harassment and safety. They become vulnerable when drafted to prohibit "disparaging" or "disruptive" conduct in the abstract, because employees read that to cover complaints about management.
  5. Media contact. Requiring that press inquiries be routed to a spokesperson is fine as a business practice; prohibiting employees from speaking to the press about working conditions is not.
  6. No-recording rules. A flat ban is vulnerable, since recording can be protected activity. Tie the rule to specific interests — patient privacy, trade secrets, safety-sensitive areas — and say so.
  7. Investigation confidentiality. A blanket, permanent instruction not to discuss an investigation is problematic. Tie confidentiality to a case-specific need — witness protection, evidence integrity, retaliation risk — and limit its duration.
  8. Solicitation and distribution. Use working-time and working-area language, not "on company property," and enforce it consistently against cookie sales and charity drives too.
  9. Employee committees. A committee the employer creates and controls that deals with wages, hours, or working conditions can be an unlawfully dominated labor organization under § 8(a)(2). Safety committees and suggestion programs need careful structuring.
  10. Arbitration agreements. Class waivers are enforceable after Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018), but an agreement that a reasonable employee would read as barring Board charges is unlawful. Include an express carve-out preserving the right to file charges with the Board and other agencies.
  11. Severance agreements. Confidentiality and non-disparagement clauses that broadly restrict a departing employee from discussing the terms of employment or the agreement can violate § 8(a)(1). Narrow them and add a savings clause.
  12. Acknowledgment forms. Do not require employees to agree that they will not engage in conduct the Act protects; and make sure the at-will disclaimer does not read as a waiver of the right to seek collective representation.

An afternoon spent on this list eliminates most of the NLRA exposure of a company that will never see an organizer.

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This article is provided for general informational purposes and does not constitute legal advice. Board doctrine changes with the composition of the Board, and several standards described here have been reversed and restored within recent memory. Confirm the current rule and consult qualified labor counsel before acting during an organizing campaign.