Quick Article Summary

• Private-sector employees in Texas generally have the right to discuss wages, complain together about working conditions, organize a union, refuse to support a union, and participate in protected concerted activity under the National Labor Relations Act.
• A group of employees does not have to belong to a union to have protected rights, because the National Labor Relations Board protects employees who act together to improve wages, schedules, safety, discipline, policies, or other working conditions.
• Employers may continue operating during union activity or a strike, but they must avoid threats, retaliation, coercive questioning, unlawful surveillance, and discipline based on protected activity.

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Why Texas Employers Need to Understand Union and Organizing Rights

Many Texas business owners assume union laws do not matter unless a union is actively trying to organize their workforce. That assumption is dangerous. Federal labor law protects many employee actions even when there is no union, no union election, no collective bargaining agreement, and no formal organizing campaign.

The National Labor Relations Board explains that it protects the rights of private-sector employees to join together, with or without a union, to improve wages and working conditions through the National Labor Relations Board’s overview of employee rights.

That means a small Texas employer can run into labor law problems even with a workforce of non-union employees. If two employees complain together about pay, if several employees refuse to work because of safety concerns, if workers discuss forming a union, or if one employee brings a group complaint to management, the employer may be dealing with protected activity.

This article is designed to help Texas employers understand what employees can do, what employers can do, what employers should avoid, and how to respond when employees organize, complain together, or strike.

The Legal Foundation: The National Labor Relations Act

The primary federal law governing private-sector union activity and protected group action is the National Labor Relations Act. The NLRB’s official page on the National Labor Relations Act provides the statutory framework for employee rights, union activity, collective bargaining, and unfair labor practices.

For employers, the most important concept is Section 7. Section 7 protects employees’ rights to organize, join or assist labor organizations, bargain collectively, and engage in other concerted activities for mutual aid or protection. In plain English, employees have the right to act together to improve their workplace.

The NLRA applies to most private-sector employers, including many small businesses. However, some workers are excluded from NLRA coverage, including many supervisors, independent contractors, agricultural laborers, domestic workers, and public-sector employees. Employers should be careful before assuming someone is excluded, because job titles alone do not decide legal status.

Texas Is a Right-to-Work State, But That Does Not Mean “No Union Rights”

Texas is a right-to-work state. That phrase is often misunderstood. “Right-to-work” does not mean employees have no right to organize. It does not mean employers can fire employees for union activity. It does not mean unions are illegal in Texas.

Texas law states that a person may not be denied employment because of membership or non-membership in a labor union under Texas Labor Code Section 101.052.

The practical meaning is that employees cannot be forced to join or financially support a union as a condition of employment. But private-sector employees in Texas still have federal rights under the NLRA to discuss unions, support unions, oppose unions, distribute union materials in appropriate circumstances, and engage in protected concerted activity.

For Texas employers, this distinction matters. Texas may be business-friendly and right-to-work, but federal labor law still applies.

Employees Also Have the Right to Refrain

Federal labor law protects both sides of employee choice. Employees have the right to support organizing, but they also have the right not to support organizing. The NLRB explains that federal law protects the right to decline participation in union organizing or concerted activity through its overview of the right to refrain.

This matters because employers should not assume all employees support a walkout, strike, or organizing effort. Some employees may want to continue working. Employers may continue operating and may allow non-striking employees to work. However, employers must not pressure employees unlawfully, threaten them, or interfere with protected rights.

The employer’s job is not to pick favorites. The employer’s job is to maintain operations while respecting lawful employee rights.

What Is Protected Concerted Activity?

Protected concerted activity is one of the most important concepts for non-union employers. The NLRB explains through its official concerted activity guidance that employees have the right to act together to improve wages and working conditions, and that employers cannot discharge, discipline, threaten, or coercively question employees because of protected concerted activity.

Activity is usually “concerted” when two or more employees act together. Examples include employees discussing pay, complaining together about scheduling, raising safety concerns as a group, circulating a petition, walking out over working conditions, or jointly asking management to change a workplace rule.

However, a single employee may also be engaged in protected concerted activity if they are acting on behalf of other employees, bringing a group complaint to management, trying to induce group action, or preparing for group action. This is why employers should be very careful before disciplining a single employee who complains about workplace issues.

What Types of Employee Complaints Are Protected?

Protected concerted activity usually involves terms and conditions of employment. That can include pay, overtime, schedules, workload, safety, benefits, discipline, management treatment, staffing levels, uniforms, break policies, workplace rules, or other issues affecting employees as employees.

For example, if three employees complain that they are not being paid correctly, that is likely protected. If two employees complain about unsafe equipment, that is likely protected. If an employee posts online asking coworkers whether they are also being denied breaks, that may be protected if it is tied to group action. The NLRB’s guidance on social media and protected concerted activity explains that employees may have the right to discuss work-related issues and share information about pay, benefits, and working conditions online when the activity relates to group action.

On the other hand, purely personal griping may not be protected. If one employee complains only about their individual frustration and is not trying to involve coworkers, prepare group action, or raise a group concern, the activity may not be concerted. But employers should not make that call casually. The facts matter.

Can One Employee “Strike” by Themselves?

This is one of the most practical questions employers ask. The answer depends on whether the employee is truly acting alone or acting in connection with group concerns.

If one employee simply walks off the job for a personal reason, refuses to work because they are individually upset, or abandons their shift without any connection to group action or workplace conditions affecting other employees, the conduct may not be protected under the NLRA. In that situation, the employer may often apply normal attendance, job abandonment, or discipline policies.

However, if one employee walks out after being authorized by coworkers to bring a group complaint, after trying to get coworkers to join a protest, or after raising workplace concerns on behalf of others, the activity may be protected concerted activity. The NLRB’s employee rights guidance specifically recognizes that a single employee may engage in protected concerted activity when acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or preparing for group action.

The practical standard for employers is this: before disciplining one employee who walks out, complains, refuses work, or speaks up, ask whether they were acting only for themselves or whether the issue involved coworkers, shared working conditions, or group concerns.

What Happens if a Group of Non-Union Employees Strikes?

A group of employees does not need to belong to a union to have strike rights. The NLRB’s official page on strikes, pickets, and protests states that all employees, union or not, have the right to participate in a protected strike, picket, or protest.

That means if a group of non-union employees walks out over wages, unsafe conditions, scheduling, unfair discipline, or other working conditions, the employer should not automatically treat the walkout as job abandonment. It may be protected.

However, not every walkout is protected. The reason for the strike, the conduct during the strike, the demands made, the timing, and the nature of the activity all matter. Employers should pause before terminating or disciplining employees who engage in a group walkout, because an unlawful response can create an unfair labor practice charge.

Economic Strikes vs. Unfair Labor Practice Strikes

The law treats different types of strikes differently. Employers need to understand the distinction between economic strikes and unfair labor practice strikes.

An economic strike generally involves a dispute over wages, benefits, hours, or working conditions. Employees may strike to demand higher pay, better schedules, improved staffing, or changes to workplace policies. The NLRB’s page on the right to strike explains that economic strikers generally retain certain reinstatement rights, but employers may be able to hire permanent replacements in some economic strike situations.

An unfair labor practice strike occurs when employees strike to protest an employer’s unfair labor practice. The NLRB’s NLRA and the Right to Strike fact sheet explains that unfair labor practice strikers cannot be discharged or permanently replaced, and when the strike ends, they are generally entitled to reinstatement absent serious misconduct.

This distinction is critical. If the employer’s own unlawful conduct caused or contributed to the strike, the employer’s options may be more limited.

What if the Employer Cannot Meet the Employees’ Economic or Scheduling Demands?

If employees strike or walk out over economic demands, such as higher wages, better benefits, more staffing, or different schedules, the employer is not automatically required to grant those demands. The National Labor Relations Act protects employees’ right to engage in certain strikes and group action, but it does not require the employer to agree to proposals that are financially impossible, operationally unreasonable, or inconsistent with legitimate business needs.

For example, if a retail store requires Saturday staffing because weekends are its busiest sales days, employees may have the right to complain together, request schedule changes, or even engage in a protected economic strike, but the employer may still maintain a lawful business requirement that Saturday availability is essential for the role. The employer should avoid retaliating against employees for raising the issue, but it can explain the business necessity, continue operating, hire lawful replacements where permitted, and maintain neutral scheduling requirements that are applied consistently.

The National Labor Relations Board’s guidance on the right to strike explains that economic strikers generally retain certain rights, but employers may continue business operations and may have different obligations depending on whether the strike is economic or based on unfair labor practices. In plain English: employees may have the right to demand changes, but employers are not legally required to give in if the demand does not work for the business.

Can Employers Replace or Terminate Striking Workers?

Sometimes, but this is a dangerous area where employers should get legal advice before acting.

For economic strikes, employers may be able to continue operations and may, in some cases, hire replacement workers. However, the reinstatement rights of striking employees depend on the type of strike, whether replacements were permanent or temporary, whether the strike involved unfair labor practices, and whether the strikers engaged in serious misconduct.

The NLRB’s official explanation of the right to strike and picket states that when a protected strike ends, employees are generally entitled to return to work, with two key distinctions.

If the strike was over economic issues/an economic strike, employees are entitled to reinstatement unless the employer hired permanent replacements, in which case returning strikers may be placed on a preferential hiring list.

If the strike was over unfair labor practices, the employer has far less flexibility. Those strikers generally must be reinstated when they offer to return, even if replacement workers must be discharged.

What Conduct Can Cause Strikers to Lose Protection?

Employees do not have a legal right to engage in serious misconduct just because they are striking or protesting. The NLRB explains on its right to strike page that strikers who engage in serious misconduct may lose reinstatement rights. Examples include physically blocking people from entering or leaving a facility, threatening violence against non-striking employees, or attacking management representatives.

Employers should document strike misconduct carefully. Take notes, preserve video, gather witness statements, and avoid exaggeration. The goal is to document specific behavior, not punish lawful protected activity.

Examples of potentially unprotected conduct may include violence, threats of serious injury, property destruction, blocking ingress or egress, harassment, or other serious misconduct. But peaceful picketing, group complaints, or refusal to work as part of a protected strike may be protected.

What Employers Cannot Do During Organizing or Protected Activity

Employers must avoid conduct that interferes with employee rights. The NLRB’s page on employer and union rights and obligations identifies unlawful employer conduct, including threatening employees with job loss or loss of benefits if they support a union or engage in protected concerted activity, threatening to close a plant if employees select a union, coercively questioning employees about union sympathies, and promising benefits to discourage union support.

A practical way to remember this is the classic employer rule: do not threaten, interrogate, promise, or surveil.

Employers should not threaten termination, reduced hours, loss of benefits, immigration consequences, blacklisting, or workplace closure because employees support organizing. Employers should not question employees in a coercive way about who supports a union. Employers should not promise raises, promotions, or special treatment to stop organizing. Employers should not spy on union meetings or create the impression of surveillance.

What Employers Can Say About Unions

Employers do have rights. Employers may generally communicate facts, opinions, and experiences about unionization, as long as they do not threaten, interrogate, promise benefits, or spy on employees.

For example, an employer may explain its preference to work directly with employees, describe the realities of collective bargaining, provide truthful information about union dues where applicable, or explain how unionization could affect communication. However, messaging must be accurate and non-coercive.

The safest employer communications are calm, factual, and documented. Emotional speeches, threats, or exaggerated claims can become evidence in an unfair labor practice case.

Can Employees Discuss Pay?

Yes. Employers should be very careful about policies or manager instructions that prohibit employees from discussing wages. Wage discussion is often protected because pay is a core term and condition of employment.

If an employer disciplines employees for discussing wages, complaining together about pay, or asking coworkers whether they are paid correctly, that can create NLRA risk.

This is especially important for small businesses where owners may feel uncomfortable with employees comparing pay. Discomfort is not a lawful reason to prohibit protected wage discussions.

Can Employees Use Social Media to Organize or Complain?

Sometimes, yes. The NLRB’s page on social media rights explains that employees may have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on social media when the activity relates to group action or seeks to initiate, induce, or prepare group action.

This does not mean every angry post is protected. A purely individual rant may not be concerted activity. Posts involving threats, harassment, disclosure of confidential information, or maliciously false statements may raise other issues. But employers should not discipline online complaints just because they are embarrassing or critical.

Before disciplining an employee for social media activity, ask whether the post involved wages, schedules, safety, discipline, management conduct, or other working conditions, and whether coworkers were involved or being invited to act.

Can Employees Refuse to Work Because of Safety Concerns?

A group refusal to work due to safety concerns may be protected concerted activity if employees are acting together regarding working conditions. Safety issues may also implicate OSHA rights depending on the circumstances.

Employers should treat safety-related work refusals carefully. If employees say equipment is unsafe, conditions are dangerous, or work creates a serious hazard, the employer should investigate promptly, document findings, and correct hazards where needed.

The worst response is to immediately threaten termination without reviewing the concern. Even if the employer ultimately concludes the work was safe, the process matters.

Texas Public Employees Are Different

This article primarily focuses on private-sector employers, but Texas public-sector labor rules are different. Texas law restricts collective bargaining and strikes by public employees. Texas Government Code Chapter 617 addresses public employee labor activity, and the state’s collective bargaining and strikes statute includes provisions governing public employment, including right-to-work language for public employees.

Private employers should not rely on public-sector rules, and public employers should not assume private-sector NLRA rules apply the same way. The type of employer matters.

What Should an Employer Do When Employees Start Talking About a Union?

The first step is to stay calm. Union talk often causes business owners to panic, but panic leads to mistakes. Do not start threatening employees, interrogating employees, changing policies overnight, suddenly granting benefits, or asking managers to “find out who started it.”

Instead, employers should review their policies, train supervisors, identify employee concerns, and ensure managers understand what they can and cannot say. Employers should also consider whether the organizing interest is a symptom of unresolved workplace problems such as pay concerns, inconsistent discipline, poor communication, safety issues, scheduling frustration, or lack of trust in management.

A union campaign does not appear out of nowhere. It usually grows from employee dissatisfaction. Employers should address legitimate workplace concerns without retaliating against protected activity.

What Should an Employer Do if Employees Walk Out?

If employees walk out, the employer should first identify what happened. Who walked out? What did they say? Was there a demand? Was the issue related to wages, safety, discipline, scheduling, or working conditions? Did employees leave together? Did one employee speak for others? Were there threats, property damage, or serious misconduct?

Do not immediately label it job abandonment. Do not immediately terminate everyone. Do not make threats. Gather facts first.

The employer can continue operating, communicate with employees, document missed work, and determine whether temporary staffing is needed. But before imposing discipline, the employer should evaluate whether the walkout was protected concerted activity or a protected strike.

What if Employees Are Not in a Union and Have No Formal Demands?

Employees do not need formal union representation to act together. They also do not need a polished written demand letter. A group complaint can be informal.

For example, if five employees leave because they say the building is too hot, the pay is wrong, or the schedule is unfair, the absence may still involve protected concerted activity even if no union is involved.

The employer should focus on the substance of the issue, not whether the employees used legal terms.

Can an Employer Discipline Employees Who Strike?

Sometimes, but only for lawful reasons. An employer generally cannot discipline employees simply because they engaged in a protected strike or protected concerted activity. However, employees may be disciplined for serious misconduct, violence, threats, property damage, or other behavior that loses legal protection.

Employers may also enforce neutral workplace rules in some circumstances, but the timing and motivation matter. If discipline appears to be punishment for protected activity, the employer may face an unfair labor practice charge.

Before disciplining employees connected to a strike, walkout, petition, group complaint, or organizing effort, employers should carefully document the lawful reason and consult experienced HR or legal counsel.

Can an Employer Ask Employees Whether They Support the Union?

Employers should be very cautious. The NLRB identifies coercive questioning about union sympathies or activities as unlawful in certain circumstances through its employer and union rights and obligations guidance.

A manager casually asking, “Who is behind this?” or “Are you supporting the union?” may seem harmless to the employer but coercive to employees. The risk is especially high when the manager has authority over scheduling, discipline, pay, or termination.

The better approach is to avoid direct questioning about union support and instead communicate lawful, general information to all employees.

Can an Employer Change Pay or Benefits During Organizing?

This is an area where employers get into trouble. Sudden changes during organizing can look like either punishment or bribery. Cutting hours, changing schedules, enforcing rules differently, granting sudden raises, or offering new benefits to discourage organizing may create legal risk.

Employers should continue normal business operations and avoid unusual changes that are motivated by union activity. If a change was planned before organizing began, document that timeline carefully.

Can an Employer Enforce Attendance Policies During a Strike or Walkout?

Employers may maintain attendance policies, but enforcing them against protected activity can be risky. If the absence is part of protected concerted activity or a protected strike, discipline under an attendance policy may violate the NLRA.

This does not mean employees can do anything they want. It means the employer must analyze whether the absence is protected before applying the policy.

A practical standard is this: if multiple employees are absent together because of workplace concerns, do not treat it like ordinary attendance until the protected activity issue has been reviewed.

What About Weingarten Rights?

Union-represented employees may have the right to request representation during an investigatory interview that they reasonably believe could lead to discipline. The NLRB explains Weingarten Rights as the right of employees, upon request, to have their representative present during certain investigatory interviews.

For non-union private workplaces, the application of Weingarten rights has changed over time through NLRB decisions, so employers should be cautious and current before denying representation requests in sensitive situations. If a union is involved, or if an employee specifically requests representation in an investigatory meeting, slow down and get guidance before continuing.

Employer Response Framework: The SAFE Method

Texas employers need a practical framework for union activity, group complaints, and walkouts. The Unit Consulting recommends the SAFE Method.

Stop Before Disciplining

Do not react immediately. Discipline issued in anger can become evidence of retaliation or interference. Pause long enough to identify whether the conduct may be protected.

Assess the Legal Category

Determine whether the issue involves union activity, protected concerted activity, a strike, a safety concern, a wage concern, or an individual complaint. The category determines the risk.

Find the Facts

Document who was involved, what was said, what workplace issue was raised, whether coworkers were involved, whether there was misconduct, and whether the employer has evidence beyond hearsay.

Execute a Lawful Response

Respond based on facts and legal risk. Continue operations where possible, communicate professionally, avoid threats, and get HR or legal guidance before discipline or termination.

Common Employer Mistakes

The most common mistakes include firing the “ringleader,” threatening employees for discussing pay, asking employees who supports the union, promising raises to stop organizing, suddenly enforcing policies more harshly, treating a group walkout as ordinary job abandonment, refusing to reinstate protected strikers, and failing to train supervisors.

Many of these mistakes happen because managers do not know the NLRA applies without a union. That is why training is critical.

Best Practices for Texas Employers

Texas employers should train managers on protected concerted activity, review handbook policies for NLRA risk, avoid overly broad confidentiality or social media rules, maintain consistent discipline, create lawful complaint channels, address workplace issues early, and document legitimate business decisions.

Employers should also build a culture where employees can raise concerns internally before they feel the need to organize externally. Strong communication, fair policies, consistent discipline, and timely complaint resolution are not just good management practices. They are union-risk prevention practices.

Why This Matters for Small and Mid-Sized Businesses

Small employers often believe labor law is only for large corporations. That is not true. A small business with no union can still face an NLRB charge if employees are punished for protected concerted activity.

For example, a restaurant, medical office, warehouse, retail store, construction company, or professional services firm can all run into NLRA issues if employees act together over pay, safety, schedules, or working conditions.

The business does not need to be “anti-union” to violate the law. A manager can violate the law simply by reacting poorly to group complaints.

The Bottom Line for Texas Employers

Employees in Texas have the right to organize, discuss wages, complain together about working conditions, support or oppose unions, and participate in protected concerted activity. A group of employees does not need to be unionized to have these rights.

A single employee may also be protected if they are acting on behalf of coworkers or trying to start group action. A group of non-union employees may be protected if they strike or walk out over workplace concerns.

Employers can continue operating, communicate their position, enforce lawful rules, and protect their business. But they must avoid threats, retaliation, coercive questioning, surveillance, unlawful discipline, and rushed terminations.

When in doubt, slow down. Labor law mistakes can become expensive quickly.

How The Texas HR Outsourcing Services at The Unit Consulting Can Help

At The Unit Consulting, we help Texas employers navigate difficult employee relations issues before they turn into legal problems. Union activity, group complaints, walkouts, wage discussions, safety protests, and employee organizing require careful handling.

We can help your business review handbook policies, train managers on protected concerted activity, respond to employee complaints, document workplace issues, and avoid unlawful retaliation or discipline. If employees are organizing or acting together over workplace concerns, your next move matters.

Contact the Texas HR outsourcing services firm at The Unit Consulting today.