NLRB on the right of employees to engage in workplace advocacy


On March 31, 2021, Acting General Counsel of the NLRB, Peter Ohr, issued a memorandum entitled “Effectuation of the National Labor Relations Act through Vigorous Enforcement of Mutual Aid or Protection and Inherily Concerted Doctrines” to all Regional Directors. While the memorandum does not change the NLRB precedent in any way, it is an overview of the Office of the General Counsel’s enforcement and litigation strategy, which could lead to changes in the law over the years. coming months and years.

At its core, the memorandum articulated the Acting Advocate General’s desire to aggressively enforce Article 7 employee rights to engage in “mutual aid or protection” and activities “inherently concerted ”well beyond conduct which is a precursor of a trade union campaign, by extending such conduct to the defense of the political and social justice of employees, which is a topical subject in almost all places of work today.

The health and safety concerns underlying the COVID-19 pandemic and the social justice movements that have infiltrated over the past year have created a confluence of circumstances resulting in increased employee interest in advocating for the issues. social “hot spots” in the workplace. This dynamic was fully displayed by union leaders seeking to organize new members around more social issues. This is exemplified by graduate students seeking to organize and form unions, while championing social justice concerns on campus.

“Mutual aid or protection in today’s landscape”

Ohr argued for a broader vision of “mutual help or protection” in line with the discourse that is common in the workplace regarding today’s social issues. Importantly, however, Ohr acknowledged that such conduct is protected under section 7 of the law when it “relates directly to the interests of employees as employees.”

Ohr cited examples of cases where employee conduct is protected by the law, which is instructive: for example, public commentary, promotion and engagement in work stoppages in favor of increased labor costs. minimum wage – a legislative issue – would be protected by law. when expressed by employees earning around minimum wage. Likewise, employees who work with or are undocumented immigrants who protest in response to a sudden crackdown on undocumented immigrants, may also be protected.

Ohr promised to “vigorously enforce[e] the provisions of the Law ”in this area, while commenting on recent Commission decisions which applied“ mutual aid or protection ”in a restrictive manner. While Ohr may disagree with the 2019 Council decisions regarding Alstate Maintenance, 367 NLRB n ° 68 (2019) and Quicken Loans, 367 NLRB No. 112 (2019), Ohr did not go so far as to criticize the Majority’s involvement in these cases. Instead, Ohr noted where these rulings “left opportunities to demonstrate mutual aid or protection that should be fully utilized.” Ohr provides a guide for employees and unions on how to obtain the protection of the law: ensuring that objections or protests in the workplace can be linked to the interests of employees in the workplace as ’employees.

For example, the Council of Alstate maintenance (which we discussed here) ruled that the employee’s comment to his supervisor that he did not want to do a job because customers did not tip was considered an unprotected activity. However, the Board noted that the comment would have been protected if it was intended to change the employer’s policies or practices. Likewise, in Quicken Loans, Council concluded that an employee’s comment that he did not want to deal with a customer complaint because it was a “waste of time” was not protected because it was not intended to change workers’ policies.

“Find certain behaviors which are intrinsically concerted”

Ohr also spoke of his desire to adopt a broad definition of what constitutes an “intrinsically concerted” activity in terms of workplace discourse. Of course, to obtain the protection of section 7 of the Act, the activity must be “concerted” (in addition to being protected). To be concerted, the conduct might involve only one speaker and one listener (as opposed to several individuals speaking together). Further, Ohr noted that contemplation of group action is not a required element.

Ohr said the Advocate General’s office would likely seek broad application of what constitutes an “inherently concerted” activity. Specifically, the Acting Advocate General may seek to protect the rights of employees to engage in speeches related to occupational health and safety issues and racial discrimination, which have not yet been approved by the Advice – in addition to categories of speech that have been traditionally protected, such as wages, job security and working hours.

* * *

It is certainly worth looking at how the Acting Advocate General intends to “vigorously” enforce Article 7 employee rights under this protocol, and whether the law will change in any respect. Stay tuned!

© 2021 Proskauer Rose LLP / srl. Revue nationale de droit, volume XI, number 95


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