With union membership rates at their lowest level since the
National Labor Relations Act (NLRA) was enacted in 1935, organized
labor is desperately seeking to attract new members, even if that
means targeting new industries that have traditionally been
ignored. Over the past few months, unions have been busy sparking
drives to organize retail and fast food service workers across the
In November, organized labor coordinated a series of protests
and strikes in over 100 cities in response to the Black Friday
plans of various retailers. A few weeks later, unions coordinated
their largest fast food demonstration to date when 200 nonunion
workers protested outside dozens of New York
These protests highlight the need for employers across all
industries, including those that have historically been disregarded
by organized labor, to understand that the NLRA protects employees
– regardless of whether they are union members.
Why The Fast Food Industry Is Tough
The fast food industry has been historically perceived as paying
low wages and offering limited or irregular work schedules for
their employees, making it a prime target for organized labor. But
unions have faced an uphill battle organizing fast food workers for
years. According to organized labor leaders, high turnover has
complicated efforts to muster the support sufficient to file a
representation petition with the National Labor Relations
The franchise-operated structure in the fast food industry is
also said to create a further hurdle for union organizing. With
these difficulties in mind, many employers were caught off guard
when Big Labor hit retail and fast food establishments this past
According to the United Food and Commercial Workers
International Union (UFCW), a well-known retailer faced protests at
over 1,000 of its stores in conjunction with its Black Friday
operations. According to this retailer's management, the
UFCW's figures were exaggerated and had no impact on their
Black Friday sales. Although the UFCW's figures are in
question, the protests signified the first coordinated work
stoppage of this retailer's nonunion employees in its
A few weeks later, organized labor groups coordinated similar
protests at various well-known fast food establishments in New York
City. This represented the most extensive effort to unionize fast
food workers to date and likely signals an intent to continue
targeting this rapidly growing industry.
It is important to remember that the NLRA protects union and
nonunion employees alike. Section 7 of the NLRA grants employees
the right to "engage in ... concerted activities for the
purpose of collective bargaining or other mutual aid or
Protected concerted activity generally takes place when an
employee acts on behalf of others aside from himself or herself to
complain about workplace terms and conditions. The broad statutory
language leaves room for subjective interpretation, and, over the
years, the courts and the NLRB have broadly defined the standard
for "concerted conduct."
The recent retail and fast food strikes offer just one example
of concerted protected activity. That means that participating
nonunion employees are typically protected (absent violent or
otherwise unlawful misconduct) from termination for their
involvement. With these labor activities garnering much media
attention, they will likely spawn copycat protests at other
worksites throughout the country.
Adding fuel to the fire is the NLRB's increased focus on the
Section 7 rights of nonunion employees. In June 2012, the NLRB
dedicated a webpage specifically advising nonunion employees of
their rights to engage in concerted activity. The website also
provided selected descriptions of recent cases involving protected
concerted activity at nonunionized worksites.
According to NLRB Chairman Mark Gaston Pearce, "the right
to engage in protected concerted activity is one of the best kept
secrets of the National Labor Relations Act, and [it is] more
important than ever in these difficult economic times. Our hope is
that other workers will see themselves in the cases we've
selected and understand that they do have strength in
A proposed rule requiring employers to post a conspicuous notice
advising employees of their workplace rights under the NLRA will
likely further serve to drive up employee awareness of this
In light of the recent media coverage of this strike activity,
as well as the NLRB's increased focus on the rights of nonunion
employees, employers who historically have not spent much time
worrying about the NLRA may have more to worry about in 2013.
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.