September 18, 2021

Volume XI, Number 261

Advertisement

September 17, 2021

Subscribe to Latest Legal News and Analysis

September 16, 2021

Subscribe to Latest Legal News and Analysis

NLRB General Counsel Promises “Vigorous” Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social Issues and Health and Safety Concerns

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

At its core, the Memorandum articulated the Acting General Counsel’s desire to aggressively enforce employees’ Section 7 rights to engage in “mutual aid or protection” and “inherently concerted” activities well-beyond conduct that is a precursor to a union campaign, by extending such conduct to employees’ political and social justice advocacy, which is a trending topic in nearly all workplaces today.

The health and safety concerns underlying the COVID-19 pandemic and the percolating social justice movements over the last year have created a confluence of circumstances resulting in increased employee interest in advocating for “hot button” social issues in the workplace.  This dynamic has been on full display 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 at the same time, advocating for social justice concerns on campus.

“Mutual Aid or Protection in Today’s Landscape”

Ohr advocated for an expansive view of “mutual aid or protection” in line with speech that is commonplace in the workplace regarding the social issues of today.  Importantly, however, Ohr recognized that such conduct becomes protected by Section 7 of the Act when it “has a direct nexus to employees’ interests as employees.”

Ohr cited examples of when employee conduct gains protection of the Act, which is instructive:  for instance, public commenting, advocating for and engaging in work stoppages in support of an increase of the minimum wage – a legislative issue – would be protected by the Act when voiced by employees who earn around minimum wage.  Similarly, 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 “robustly enforc[e] the Act’s provisions” in this area, while commenting on the Board’s recent decisions that applied “mutual aid or protection” narrowly.  While Ohr may disagree with the Board’s 2019 decisions in Alstate Maintenance, 367 NLRB No. 68 (2019) and Quicken Loans, 367 NLRB No. 112 (2019), Ohr did not go so far as to criticize the Majority’s holdings in those cases.  Instead, Ohr noted where those decisions “left avenues for demonstrating mutual aid or protection that should be fully utilized.”  Ohr provides a playbook to employees and unions regarding how to gain protection of the Act:  ensure that workplace objections or protests can be tied to the employees’ interests in the workplace as employees.

For instance, the Board in Alstate Maintenance (which we discussed here) held that the employee’s comment to his supervisor that he did not want to perform a job because the customers did not tip was deemed unprotected activity.  However, the Board noted that the comment would have been protected if it were aimed at changing employer policies or practices.  Similarly, in Quicken Loans, the Board concluded that an employee’s comment about not wanting to handle a customer complaint because it was a “waste of time” was not protected because it was not aimed at changing worker policies.

“Finding Certain Conduct to be Inherently Concerted”

Ohr also discussed his desire to adopt a broad definition of what constitutes “inherently concerted” activity in terms of workplace speech.  Of course, in order to obtain Section 7 protection under the Act, the activity must be “concerted” (in addition to being protected).  To be concerted, the conduct could involve only a speaker and a listener (as opposed to multiple individuals speaking together).  In addition, Ohr noted that contemplation of group action is not a required element.

Ohr indicated that the General Counsel’s Office likely would seek a broad application of what constitutes “inherently concerted” activity.  Specifically, the Acting General Counsel may seek to safeguard employee rights to engage in speech related to workplace health and safety issues and racial discrimination, which have not yet been endorsed by the Board – in addition to the categories of speech that have been traditionally protected, such as wages, job security and hours of employment.

*          *          *

It certainly bears watching how the Acting General Counsel intends to “vigorously” enforce employees’ Section 7 rights pursuant to this Memorandum, and whether the law will change in any respect.  Stay tuned!

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 95
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Paul Salvatore, Proskauer, New York, Real Estate Lawyer, Construction
Partner

Paul Salvatore is a member of Proskauer’s Executive Committee and former co-chair of its global Labor & Employment Law Department, named by The American Lawyer as one of the top U.S. practices and recipient of the Chambers USA 2012 Award for Excellence. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers (Band 1), US Legal 500 (Leading Lawyer) and Superlawyers. In 2010, The National Law Journal selected Paul as one of "The Decade's Most Influential Lawyers" – one of only...

212-969-3022
Steven Porzio Labor & Employment Attorney Proskauer Rose New York, NY
Partner

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing...

212-969-3079
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Associate

Shanice Smith-Banks earned her J.D. from Loyola University New Orleans College of Law, where she was a Managing Editor of the Loyola University Journal of Public Interest Law and a member of the Trial Advocacy program. As a 3L, Shanice was awarded the CourtCall Award for her advocacy skills.

Immediately upon graduation from Loyola, Shanice argued a case on behalf of the Loyola Criminal Defense Law Clinic in front of the Louisiana Supreme Court.

504-310-2023
Advertisement
Advertisement
Advertisement