It Takes Two (or More) to Tango

"Concerted Activity" and Labor LawLocal 802 Legal Corner

Volume CV, No. 7/8July, 2005

Harvey Mars, Esq.

At the very heart of the National Labor Relations Act is Section 7, which states, in pertinent part the following:

Employees shall have the right to self-organization, 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 such activities.

The labor movement in the United States owes its very existence to this statute.

Any activity engaged in by employees in furtherance of the objectives of this provision is considered “protected activity” and cannot be prohibited or sanctioned in any way by an employer.

However, not all union-related activities are protected.

An expressed requirement of the law is that Section 7 activities be “concerted.” In other words, two or more employees must be involved in a given workplace action. One single person, by operation of this law, is incapable of participating in or initiating concerted activity.

Likewise, not all concerted activity is protected activity.

For instance, employees who engage in a strike in violation of their collective bargaining agreement’s no-strike clause, are not protected under Section 7 and may be subject to discipline or termination.

Furthermore, the Supreme Court has stated that employees who collectively engage in activity which disparages either their employer’s product or business policies are not engaged in protected activity. NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953).

Hence, the court has affirmed on countless number of occasions that employees who participate in activities which are demonstratively disloyal to their employer are not entitled to protection under Section 7.

Often it may be difficult to discern the difference between some forms of concerted activity and activity which evidences disloyalty and it would seem that on some level, the two may intersect.

Section 7 also protects an employee’s right not to engage in union activity. Therefore, unwilling employees cannot be forced to join labor organizations or engage in other types of typically protected activity. (The only exception to this is a so-called “union security” agreement, where employees are required to join a union as a condition of their employment. This type of provision is known as a union shop clause and is only valid if employees are given a minimum number of 30 days to join the union.)

In summary, all employees must be ardently aware that while Section 7 accords powerful protections to them, these protections are not limitless. If they run afoul of Section 7 protected activity, then they run the risk of being disciplined by their employer without having legal recourse.

E-mail your legal questions to Allegro editor Mikael Elsila at and he will forward them to Harvey Mars. This column should not be construed as formal legal advice given in the context of an attorney-client relationship.