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Who’s Down With PCA? All Employees Will Be Under Proposed New Standard

Although the clock is ticking on Peter Ohr’s tenure as the NLRB’s acting general counsel, with Jennifer Abruzzo’s nomination currently pending before the Senate, Ohr continues to actively advance a pro-labor agenda. On March 31, Ohr issued a memorandum to the National Labor Relations Board’s regional staff in which he advocated for a significant expansion of the types of employee conduct that might qualify as protected, concerted activity (sometimes referred to as PCA). 

Even more troubling for employers, Ohr committed to “robustly” enforce the National Labor Relations Act (NLRA) and “vigorously” prosecute claims alleging unlawful employer retaliation. Because protected, concerted activity is a foundational principle of labor law, its potential expansion has far-reaching implications in virtually every union and non-union workplace.

The NLRA protects employees' rights to engage in protected, concerted activity, with or without a union. In general terms, to qualify for protection under the NLRA, the conduct must both:

  1. Relate to concerns about the workplace and workers’ terms and conditions of employment, which makes it “protected”

  2. Be engaged in by two or more employees or by one employee with the authority of other employees, which makes it “concerted” 

That standard is too narrow in Ohr’s view. He believes employee discussions concerning “political and social justice advocacy,” “societal issues” and other topics that are “not explicitly connected to” the workplace may also be entitled to protection. Regarding the concerted element, Ohr believes that employee discussion regarding certain workplace issues can and should be deemed “inherently concerted,” even if the discussion occurs only between two employees. 

If the NLRB’s regional staff adheres to the expanded view urged by Ohr, companies can anticipate an onslaught of unfair labor practice charges being brought – including by non-union workers – and more adverse findings against employers in relation to these charges.

While most employers are keenly aware of and sensitive to EEO-based discrimination and retaliation considerations, employers sometimes fail to consider potential NLRA-based claims. Going forward, union and non-union employers alike should pay close attention to the issue of protected, concerted activity when managing or disciplining employees. As we recently shared, employers can anticipate increased enforcement activity and scrutiny from the NLRB. Ohr’s support for broadening the protected, concerted activity standard provides the NLRB’s regional offices with additional ammunition to find that an employer has engaged in unlawful conduct.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 95
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About this Author

David G. Weldon Labor & Employment Attorney Barnes & Thornburg Chicago, IL
Of Counsel

Business owners, in-house counsel and human tesources professionals turn to David Weldon for pragmatic, strategic advice regarding labor and employment law matters that takes into account legal risk and their ultimate business objectives. David advises and partners with employers of all sizes, assesses and helps to minimize liability, resolves disputes, and finds solutions for day-to-day issues involving employees and unions.

David defends employers in state and federal courts across the country in single-plaintiff and class and collective action litigation involving trade secrets,...

312-214-4815
David J. Pryzbylski, Barnes Thornburg Law Firm, Indianapolis, Labor Law Attorney
Partner

David concentrates a large portion of his practice on assisting employers with traditional labor matters. His deep experience includes collective bargaining, work stoppages, arbitrations, union avoidance training and strategies, union representation elections, unfair labor practice charges, contract administration, and various other labor relations issues.

David has helped companies secure favorable outcomes with labor issues around the country. He has experience with numerous labor unions, including the Steelworkers, Teamsters, Laborers, Sheet...

317-231-6464
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