NLRB Prosecutor Signals An Aggressive And Expansive View Of Protected Employee Activities

The Acting General Counsel of the National Labor Relations Board (NLRB) recently issued a memorandum (GC 21-03) announcing his intention to vigorously pursue cases involving alleged retaliation for employees’ protected concerted activity. This announcement is important to all employers – those with unions and those without unions.

The National Labor Relations Act (NLRA) gives employees the right to organize and join unions; but it also gives them the right to engage in “concerted activities” for “mutual aid or protection.” Thus, Section 7 of the NLRA provides all employees with the right to join together to improve their terms and conditions of employment – even when they are doing so independent of a union or union organizing campaign.

The NLRB’s General Counsel decides which cases are prosecuted by the Board. The new Acting General Counsel, appointed by President Biden, has declared that he intends to vigorously enforce Section 7 in an expansive manner. He stresses that Section 7 protects not only union activity and labor organizing, but also “fundamental precursor actions” and a broad array of employee efforts to “improve their lot as employees,” including when employees use “channels outside of their immediate employee-employer relationship,” and where their activities are “in support of employees of employers other than their own.”

The Acting General Counsel believes that “employee advocacy” is protected by Section 7 even when the employees have not expressly connected their activity to workplace concerns and includes advocacy for political and social justice issues when the subject matter has a “direct nexus to employees’ ‘interests as employees.’” He provides the following examples: a hotel employee’s interview with a journalist about how earning the minimum wage affected her and employees like her, and how legislation to increase the minimum wage would affect them; a “solo” strike by a pizza-shop employee to attend a convention and demonstration where she and others advocated for a $15-per-hour minimum wage; and protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids. He states: “In each instance, the employees’ conduct had the objective goal of improving their workplaces and concerned issues within their employer’s control, like payment of wages and employers’ willingness to hire immigrants. Going forward, employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act.” 

Usually an employer has a defense to a retaliation charge if the employee was involved in a purely political protest; we believe the Acting General Counsel is signaling that this defense will no longer have much merit and that he will issue a complaint if an employer restricts employee protests regarding issues such as immigration, minimum wage, equity and diversity inclusion.

Indeed, his memo goes on to announce that he will take an expansive view of what constitutes “concerted” action, eliminating another typical defense for the employer. The Acting General Counsel asserts that contemplation of group action is not always a required element because certain conduct is “inherently concerted,” such as employee discussions of “crucial common issues” about wages, workplace health and safety, racial discrimination, and other “vital elements of employment.”   

We encourage all employers to carefully review the General Counsel’s memorandum. Employers should be extremely cautious when addressing conduct that could potentially be covered by Section 7. We recommend that you consult with counsel before issuing discipline for such conduct and consider training your supervisors on Section 7 protections. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.