Legal Criterion for Nonunion Workers to Strike
The statement “Nonunion workers may strike only if their actions are truly concerted and meet legal criteria” refers to protections granted under the National Labor Relations Act (NLRA), specifically Section 7. This report outlines the legal criteria governing strikes by nonunion workers, drawing on statutory language, official guidance, and enforcement practices of the National Labor Relations Board (NLRB).
Statutory Basis: The National Labor Relations Act (NLRA)
The foundational legal criterion for nonunion workers’ right to strike is found in Section 7 of the NLRA (29 U.S.C. § 157), which provides:
“Employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”
This provision explicitly protects concerted activities—actions taken collectively by employees to improve their working conditions—even in the absence of a union [29 U.
Definition of “Concerted Activity”
“Concerted activity” under the NLRA means that two or more employees act together to address issues related to their employment [Protected Concerted Activity]. The NLRB interprets this broadly: it does not require a formal union structure or prior planning. It can include discussions, petitions, walkouts, or social media posts when done collectively to improve wages, hours, safety, or other terms and conditions of employment [Protected Concerted Activity][Union and Protected Concerted .
For example:
- Workers discussing low pay at lunch may be engaging in protected activity.
- A group refusing to work under unsafe conditions qualifies as concerted action [Protected Concerted Activity].
- Employees signing a petition about staffing issues, as in the Hispanics United of Buffalo case, are protected even if not unionized [Protected Concerted Activity].
A single employee may also act “concertedly” if they are acting with the authority of other employees or raising group concerns [Concerted & Protected Activity.
Legal Requirements for a Lawful Strike by Nonunion Workers
For a strike by nonunion workers to be legally protected, three criteria must generally be met:
1. The Action Must Be Concerted
As defined above, the strike must involve collective action—not merely an individual protest [Protected Concerted Activity]. A single employee walking off the job in protest typically does not qualify unless they are doing so on behalf of a group or in response to group discussions [Protected Concerted Activities.
2. The Purpose Must Be “Mutual Aid or Protection”
The strike must be aimed at improving the terms and conditions of employment. This includes:
- Wages and benefits [Employee Rights Under NLRA]
- Workplace safety [Protected Concerted Activity]
- Staffing levels and workload [Protected Concerted Activity]
- Management practices affecting the workforce
Strikes motivated by personal grievances or unrelated political causes are not protected [Protected Concerted Activity i.
3. The Conduct Must Be Lawful
Even if concerted and for mutual aid, the strike loses protection if:
- It involves violence, threats, or destruction of property
- It violates a no-strike clause in an employment contract (though such clauses are rare for nonunion workers)
- It is in response to a lawful disciplinary action, unless other workers are involved in a protest
For instance, in the Washington Aluminum Co. case affirmed by the Supreme Court, workers walked off the job during a cold winter because the heat was not working. Though spontaneous and nonunion, the NLRB and courts ruled it was protected concerted activity for mutual aid [Protected Concerted Activity].
Limitations and Employer Rights
While nonunion workers enjoy these protections, employers may still lawfully:
- Replace striking workers (though not discharge them for protected activity)
- Maintain order and safety during work stoppages
- Enforce neutral workplace policies, as long as they do not chill protected rights
However, disciplining employees for engaging in protected concerted activity—such as firing them for organizing a walkout over unsafe conditions—constitutes an unfair labor practice under Section 8(a)(1) of the NLRA [Protected Concerted Activity i.
Conclusion
The legal criterion for nonunion workers to strike lawfully is that their actions must:
- Be truly concerted—involving two or more employees acting together,
- Be for mutual aid or protection regarding their employment,
- It is to be conducted lawfully, without violence or contract violation.
This standard is rooted in Section 7 of the NLRA (29 U.S.C. § 157) and enforced by the NLRB [29 U.
