On a January morning in 1959, seven machinists at a nonunion Baltimore shop walked off the job because the building was bitterly cold, and the company fired them. The Supreme Court held in NLRB v. Washington Aluminum Co. (1962) 370 U.S. 9 that the walkout was protected. A company with no union can still face an unfair labor practice charge for disciplining employees who act together about pay or working conditions. The defense usually depends on whether the conduct was concerted and why the company acted.
What does Section 7 protect?
Group action about working conditions, whether or not a union exists. Under 29 U.S.C. § 157, employees have the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under section 158(a)(1), it’s an unfair labor practice for an employer “to interfere with, restrain, or coerce employees” in exercising those rights.
The NLRB’s own guidance lists examples, including “circulating a petition asking for better hours” and “joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.” Many managers don’t realize these rights exist outside a union setting. That gap is how most charges against nonunion companies begin.
Can one employee engage in concerted activity?
Yes, in some circumstances. According to the NLRB, a single employee is protected “if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.”
This is where most disputes arise. A lone employee’s personal gripe about their own schedule is usually not concerted. The same employee raising a complaint at a staff meeting that several coworkers share may be. The facts that matter are who else was involved, what was said, and whether the employee spoke for others. Witness statements gathered early tend to decide that question.
Did the employees have to make a demand first?
No. In Washington Aluminum, the company argued the walkout wasn’t protected because the workers never asked for anything before leaving. The Court disagreed, explaining that “The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made.”
The Court also stressed the setting. The workers “had no bargaining representative and, in fact, no representative of any kind to present their grievances to their employer.” The lack of a union made their group action more important to protect, not less. A nonunion employer shouldn’t assume informal complaints fall outside the statute.
What conduct loses protection?
Some, and that’s where an employer’s defense often lies. The Court noted that “§ 7 does not protect all concerted activities,” pointing to activity that is unlawful, violent, or in breach of contract. The NLRB’s guidance states that an employee “can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false.”
An employer that disciplines for threats, harassment of coworkers, or disclosure of confidential customer information stands on firmer ground than one that disciplines for complaining. The documentation should name the specific conduct and show the same rule was applied to others. Discipline for negativity or a bad attitude right after a group complaint invites a charge.
Who isn’t covered?
Supervisors and independent contractors, among others. The definition of “employee” in 29 U.S.C. § 152(3) excludes agricultural laborers, domestic workers, “any individual having the status of an independent contractor,” and “any individual employed as a supervisor.” A supervisor is someone with authority to take or “effectively to recommend” actions such as hiring, discipline, or assigning work, using “independent judgment.”
Titles don’t control. A shift lead who only relays the schedule is probably an employee under the Act, even if the handbook calls the role supervisory. The exclusion depends on the authority the person actually exercised, so evidence of real hiring, discipline, or assignment decisions made with independent judgment carries more weight than a job description.
What can the NLRB order?
Make-whole remedies, not penalties. Section 160(c) authorizes orders to cease and desist and to take affirmative action “including reinstatement of employees with or without back pay.” The NLRB explains that it “cannot assess penalties” but “may seek make-whole remedies, such as reinstatement and backpay for discharged workers,” along with posting a notice.
The process starts with a charge filed at a regional office, followed by an investigation in which Board agents “may take affidavits from parties and witnesses.” According to the agency, “The majority of charges are settled by the parties, withdrawn by the charging party, or dismissed by the Regional Director.” A careful position statement during the investigation is the employer’s best chance at a dismissal. In a serious case, the agency notes that the Regional Director may also ask a federal district court for a temporary injunction while the case proceeds.
Do class action waivers violate Section 7?
No. In Epic Systems Corp. v. Lewis (2018) 584 U.S. 497, the Supreme Court held that the NLRA doesn’t override arbitration agreements requiring individual proceedings. The Court explained that “Section 7 focuses on the right to organize unions and bargain collectively.” California’s own limits on arbitration and PAGA waivers are a separate question, but the NLRA itself isn’t a basis to void an individual arbitration agreement.
How do concerted activity issues compare?
| Situation | Likely status under the NLRA | Where the defense starts |
|---|---|---|
| Group of employees complains about pay or safety | Protected | Whether the discipline had a separate, documented reason |
| One employee raises a complaint shared by coworkers | Often protected | Who else was involved and whether the employee spoke for them |
| One employee’s purely personal complaint | Usually not concerted | Evidence the complaint concerned only that employee |
| Threats, violence, or maliciously false statements | Can lose protection | The specific conduct and consistent discipline for it |
| Supervisor or independent contractor | Not an “employee” under § 152(3) | The authority the person actually held, or the contractor relationship |
What should an employer do once an NLRB charge arrives?
Board agents move quickly, and the position statement sets the tone. Build the record before writing it.
- Preserve the personnel file, the discipline or termination paperwork, emails, texts, chat messages, social media posts at issue, and the handbook rules the company relied on.
- Calendar the position statement date the regional office sets, and check for an employment practices liability (EPLI) policy with notice requirements and any arbitration agreement covering related state claims.
- Identify every manager involved in the decision and every coworker who took part in the activity, and stop any further action against the employees that could look like retaliation.
- Pull the documents the charge depends on, including what the employees said or did, when managers learned of it, and how the company treated similar conduct by others.
- Talk to a lawyer before submitting a position statement, giving affidavits to Board agents, or offering reinstatement or settlement.
Employers looking for defense of NLRB charges for California employers can review the firm’s practice page.
NLRA questions from California employers
Does the NLRA apply to small businesses?
Most private employers are covered, but the Board applies jurisdictional standards based on the company’s annual business volume, and those thresholds are low enough that many small companies meet them. A small retailer or restaurant should assume coverage unless counsel confirms otherwise. The size of the company rarely ends the inquiry.
Can we ban employees from discussing pay?
Not lawfully. The NLRB’s guidance lists “openly talking about your pay and benefits” as protected activity. California’s Labor Code section 232 separately bars rules that prohibit employees from disclosing their wages. A confidentiality policy should be limited to confidential business information such as customer data and trade secrets, and shouldn’t reach employees’ own wages.
Is a social media post protected?
It can be. A post that discusses working conditions with coworkers, or seeks their support, may be concerted activity. A post that’s egregiously offensive, maliciously false, or attacks the company’s products without connecting them to a labor dispute may lose protection. Read the full thread and identify who participated before deciding on discipline.
Do we need to respond if we think the charge has no merit?
Yes. The regional office decides whether to issue a complaint based on the evidence it gathers. Silence leaves the investigation to the charging party’s account. A position statement backed by documents, and prepared with counsel, is usually the most efficient way to end a weak charge.
If an NLRB charge reaches your company
If your company has received an unfair labor practice charge claiming it disciplined or fired employees for acting together about pay or working conditions, the reason for the decision and the record behind it usually decide how much of the charge is real. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including NLRB charges at nonunion companies. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are 29 U.S.C. § 152, § 157, § 158, and § 160. The decisions of the Supreme Court of the United States are NLRB v. Washington Aluminum Co. (1962) 370 U.S. 9 and Epic Systems Corp. v. Lewis (2018) 584 U.S. 497. The agency sources are the NLRB’s pages on concerted activity and investigating charges.
This post is general information about California employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.