Unionizing and Concerted Activity in the Private Sector

 Labor union participation has declined drastically since the 1970s.  From so-called “right to work” laws to outspoken political opposition, the labor market has grown increasingly hostile to unionization—and none more so than the private sector.  According to the Bureau of Labor Statistics, union membership in the private sector stood at a mere 6.4%, while public sector employees (state, federal, and local) had a union membership rate of nearly 5 times that at 34.4% (and according to some estimates, the federal sector membership is a robust 63%).  

Statistics show that belonging to a union means more money in your pocket, at a median rate of $200 extra per week for unionized workers versus their non-unionized peers.  Such pocket-book disparity can make the difference between living paycheck-to-paycheck and a comfortable life.  With that in mind it is useful to review private employees’ right to form a union and exercise rights that you already have.

Most private employees (with some exceptions) have a legal right to unionize and engage in collective bargaining.  This right is enshrined in the National Labor Relations Act (“NLRA”), and enforced by the National Labor Relations Board (“NLRB”).  The NLRA guarantees your right to join together to collectively improve your working conditions and wages—with or without a union.  

As a private employee you have the right to

  • Form or organize a union in your workplace;
  • Join a union;
  • Assist a union attempting to organize the employees;
  • Refuse to join a union or assist a union;
  • If there is a union, be fairly represented without favoritism by the union.

If you are not a member of a union, as a private employee you still have the right to engage in what is called “concerted activity,” protected from adverse actions by your employer.  Generally, you are engaged in protected concerted activity if you and at least one other employee work together to improve your wages, work conditions or terms—and your employer knows about it. 

One way to alert management that you are working together is by using “we” when you raise the issues with management.  This will put the employer on notice that it is a concerted activity, and prevent them from later claiming they were unaware of the “concerted” nature of the activity if they take adverse action against yo

 Some examples of protected concerted activity are two or more employees:

  • Speaking with their employer about improving their pay;
  • Conversing, with each other, about safety concerns in the workplace.

However, a single employee can engage in a protected concerted activity if he or she speaks with the employer about these issues on behalf of one or more co-workers (“we”).

The activity does not have to be formal to be protected under the law.  It can be a conversation or discussion among the employees related to their work conditions.

At HANNON LAW GROUP we have experience representing labor unions by providing counsel, strategic guidance in effecting change in management relations, and representation in disciplinary hearings and arbitrations.  If you feel like your employer is unlawfully restricting your right to unionize or has taken an adverse employment action for engaging in a concerted activity, we can help.