Can Nonprofits Unionize: NLRB Coverage, Elections, Bargaining

Yes, employees at most private nonprofits can unionize. The National Labor Relations Act treats nonprofit employers the same as for-profit ones, so staff at charities, advocacy groups, private hospitals, universities, museums, and similar organizations have the same right to organize, hold an election, and bargain collectively as workers in the commercial private sector.¹ Whether the National Labor Relations Board will actually process a case depends on the nonprofit’s annual revenue and what kind of work it does.

Who Is Covered

The NLRA, at 29 U.S.C. §§ 151–169, draws no distinction between nonprofit and for-profit employers when it defines employee rights.¹ Section 7 gives covered employees the right to form or join a union, bargain collectively, and act together to improve working conditions. Those protections start well before any union exists. Talking with coworkers about pay, benefits, scheduling, or workloads is protected group activity, including on social media, and the employer cannot fire, discipline, demote, or threaten you for it.²

Some workers are outside the Act regardless of who employs them: public-sector employees, agricultural laborers, domestic workers, independent contractors, and people employed by a parent or spouse.³ So if your nonprofit is actually a government agency or public university, federal labor law does not apply, though state public-sector labor law often does.

When the NLRB Will Take the Case

Even where the NLRA applies in principle, the Board only asserts jurisdiction over organizations that meet a revenue threshold tied to the type of nonprofit.⁴

Non-retail nonprofits, such as advocacy groups and foundations: at least $50,000 in annual goods or services flowing across state lines, directly or through a third party.
Hospitals, medical offices, social service organizations, and child care centers: at least $250,000 in gross annual revenue.
Nursing homes and visiting nurse associations: at least $100,000 in gross annual revenue.
Private colleges, universities, art museums, and symphony orchestras: at least $1 million in gross annual revenue.
Retail-type nonprofits, such as private clubs and amusement organizations: at least $500,000 in gross annual revenue.

A nonprofit’s IRS Form 990 is public and shows annual revenue, so it is usually the fastest way to check. Nonprofits under the applicable threshold may still be subject to state labor law, which varies.

Religious Nonprofits

Nonprofits with a religious mission sit on different ground. In NLRB v. Catholic Bishop of Chicago, the Supreme Court held that the Board should not assert jurisdiction over teachers at church-operated schools because doing so would risk excessive government involvement in religious matters.⁵ Courts generally apply a functional test: employees whose primary duties are religious — teaching doctrine, leading worship, carrying out the spiritual mission — fall outside NLRB jurisdiction, while employees in secular roles like maintenance, food service, or administration at the same institution generally remain eligible to organize under the NLRA.

Who Cannot Be in the Bargaining Unit

Not every person on the payroll is eligible to be part of a union at their nonprofit. Four groups are typically excluded.

Supervisors. The statute excludes anyone with authority to hire, transfer, promote, discipline, or fire other employees, or to effectively recommend those actions, using independent judgment rather than following set procedures.⁶ Job titles do not settle the question; the NLRB looks at what someone actually does.

Managerial employees. The statute does not name them, but Board policy has long excluded employees who formulate or effectuate high-level organizational policy or exercise significant independent discretion, on the theory that they represent the employer’s interests.⁷

Confidential employees. Staff who work closely on the organization’s labor relations — for example, an assistant handling collective bargaining files or negotiation strategy — are excluded.⁷

Independent contractors. True contractors are outside the NLRA entirely.⁶ The test turns on economic reality, not the label in your contract. If you depend on the nonprofit for your work, follow its schedule, use its tools, and cannot take on competing projects, you look like an employee. If you control when, where, and how the work gets done, provide your own equipment, and can profit or lose based on your own decisions, you look like a contractor.

How to Form the Union

Organizing at a nonprofit follows the same steps as any other private-sector workplace, and there are two paths.

The Election Path

Organizers collect authorization cards from coworkers in the proposed bargaining unit. Once at least 30% of those employees have signed cards designating a particular union, the union files a representation petition with the nearest NLRB regional office.⁸⁹

The Board then checks that the employer meets the jurisdictional threshold and that the proposed unit is appropriate. If the petition is in order, the regional director schedules a secret-ballot election. Within two days of that decision, the employer must give the union a list of eligible voters and their contact information. If more than half of the ballots cast favor the union, the NLRB certifies it as the exclusive representative of the unit.⁹

Voluntary Recognition

An employer can skip the election. If a majority of employees have signed authorization cards and the nonprofit accepts that showing of support, it can voluntarily recognize the union. Voluntary recognition is binding; once given, the employer must begin bargaining.⁸

What the Employer Cannot Do

Under 29 U.S.C. § 158(a), it is an unfair labor practice for an employer to coerce or restrain workers exercising their Section 7 rights, to dominate or financially support a labor organization, or to punish an employee for filing a charge or testifying in a labor proceeding.¹⁰ In practice a nonprofit cannot:

Threaten job loss, pay cuts, benefit reductions, or closure because of union activity.
Question employees about their union sympathies or activities.
Promise raises, promotions, or other benefits to discourage unionization.
Spy on or surveil union meetings, organizing conversations, or card signing.²

Employers can share their opinion about unionization, as long as they make no threats and no promises of benefit.¹⁰

After Certification: Bargaining

Once a union is certified or voluntarily recognized, the nonprofit has a legal duty to bargain in good faith over wages, hours, and other working conditions. That means meeting at reasonable times, providing relevant information the union asks for, and genuinely working toward an agreement. The employer cannot bypass the union to deal directly with individual employees, and it cannot change pay, benefits, or working conditions on its own without first bargaining to agreement or a genuine impasse.¹¹

Reaching that first contract takes time. According to Bloomberg Law data, the average is roughly 458 days, and some newly certified units never reach a first agreement at all. During negotiations, existing terms and conditions of employment stay in place.

Healthcare Notice Rule

Nonprofits that qualify as healthcare institutions carry an extra obligation on the union side. A union at a hospital, nursing home, or similar institution must give the employer and the Federal Mediation and Conciliation Service at least 10 days’ written notice before any strike, picketing, or other concerted work stoppage, and the notice must state the exact date and time the action will begin.¹⁰ A union that strikes without proper notice loses the NLRA’s strike protections.

Dues and Right-to-Work

Roughly 27 states have right-to-work laws that bar any requirement to join a union or pay dues as a condition of keeping the job. In those states, a nonprofit employee in the unit can benefit from the contract without paying anything. In states without such a law, a collective bargaining agreement can require everyone in the unit to pay dues or an equivalent fee.

Where dues are charged, they usually run about 1% to 3% of gross pay, with many unions in the 1.5% to 2% range; some locals charge a flat monthly amount. Dues fund contract negotiations, grievance handling, and legal representation. Because state law controls this piece, check whether your state has a right-to-work statute before assuming anything about dues.

If the Employer Retaliates

If a nonprofit employer fires an organizer, refuses to bargain, or otherwise commits an unfair labor practice, you can file a charge with the NLRB. The charge must be filed within six months of the violation, at your nearest regional office; staff there can help you fill out the form.¹²

The Board investigates by gathering evidence and taking statements, and the regional director typically decides within 7 to 14 weeks whether the charge has merit. Most cases end in settlement, withdrawal, or dismissal at that stage. If the charge has merit and no settlement is reached, the NLRB issues a complaint and the case goes to a hearing before an administrative law judge. Common remedies include back pay with interest, reinstatement of fired employees, and orders requiring the employer to stop the unlawful conduct and inform staff of their rights.¹²

Undoing It: Decertification

Employees who later decide they no longer want representation can petition for a decertification election. The process mirrors forming a union: at least 30% of the unit signs a petition, and if a majority of votes cast favor removal, the NLRB decertifies the union.¹³

Timing matters. No decertification petition is allowed during the first year after certification. If a collective bargaining agreement is in place, employees generally cannot petition during the first three years of that contract, except in a window that opens 90 days and closes 60 days before expiration. For healthcare institutions the window is 120 to 90 days before expiration. After a contract passes the three-year mark or expires, employees can petition at any time.¹³

1
National Labor Relations Board. National Labor Relations Act
2
National Labor Relations Board. Interfering with Employee Rights (Section 7 and 8(a)(1))
3
National Labor Relations Board. Are You Covered?
4
National Labor Relations Board. Jurisdictional Standards
5
Justia U.S. Supreme Court Center. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)
6
Office of the Law Revision Counsel. 29 USC 152 – Definitions
7
National Labor Relations Board. Basic Guide to the National Labor Relations Act
8
National Labor Relations Board. Your Right to Form a Union
9
National Labor Relations Board. The Main Steps in the Representation Case Process
10
Office of the Law Revision Counsel. 29 U.S. Code 158 – Unfair Labor Practices
11
National Labor Relations Board. Bargaining in Good Faith with Employees’ Union Representative
12
National Labor Relations Board. Investigate Charges
13
National Labor Relations Board. Decertification Election