Many nonunion employers mistakenly believe they are not subject to unfair labor practice (ULP) charges filed with the National Labor Relations Board (NLRB). However, the National Labor Relations Act (NLRA) protects employees in both union and nonunion workplaces. The NLRB enforces these protections, ensuring that employers respect employees’ rights to engage in protected concerted activities, regardless of whether a union is present.

Consider this case: Several software engineers at a beverage industry software company created and circulated a spreadsheet among their coworkers to share salary information. Their motivation stemmed from recent company restructuring and discussions about pay equity. The spreadsheet was shared widely, and a notation appeared that all developers were “underpaid.” Management quickly discovered the spreadsheet, traced its creation to one employee, and, within about 90 minutes, terminated him, citing his attitude toward the company and the restructuring. The three other employees who helped create and share the spreadsheet were fired the next day after management reviewed internal messages showing employee dissatisfaction, plans to leave, and criticism of the company.

The four employees filed an unfair labor practice complaint against the company. The NLRB Administrative Law Judge (ALJ) heard the case, found for the employees, and ordered reinstatement. The NLRB confirmed the ALJ opinion and added that the three employees’ discussions of workplace conditions were protected activity. The NLRB ordered make-whole remedies, including compensation for pecuniary harms regardless of interim earnings.

The DC Circuit of Appeals affirmed the holding for the employee who created the spreadsheet but overturned the workplace discussions as an overbroad reading of the statute. 

HR professionals in nonunion workplaces must remember that employees are still protected under the National Labor Relations Act (NLRA) when engaging in certain “concerted activities.” But what exactly does that mean?

Section 7 of the NLRA protects the rights of most nonsupervisory employees to organize, form, or join unions and to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” These protections extend beyond union organizing. They also generally apply when employees act together to address workplace concerns involving wages, benefits, working conditions, or other terms and conditions of employment. In other words, employees do not need to belong to a union to have these rights under the NLRA.

“Terms and conditions of employment” is very broadly construed. It includes pay, confidentiality of investigations, and more. On the other hand, it could include “this supervisor sucks,” and more.  There was a 2^nd Circuit Federal Court of Appeals case that even affirmed that employees have the right to say the following: “Bob is such a NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” (NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. 2017). Further, as a side note, if the employer has some sort of employee resource group or ERG and it adopts recommendations of the ERG, it could have just recognized a union. There is precedent for it.

HR professionals must remember that the NLRA and NLRB can apply to nonunion workplaces, depending on the circumstances. When addressing issues such as employee discussions about pay, confidentiality requirements, workplace recording, or other activities that may involve protected employee rights, employers should consult legal counsel to determine the appropriate course of action.

Source: Vermont Information Processing, Inc. v. NLRB, No. 24-1360 (D.C. Cir. 2026), Constangy 5/29/26