NLRB General Counsel: 'Racial Justice Advocacy' Is Protected Activity
The National Labor Relations Board is continuing to expand the definition of "protected concerted activity" beyond the traditional view.
QUICK FACTS:
Section 7 of the National Labor Relations Act provides employees the right to engage in concerted activities to improve their working conditions
In March 2021, then-acting NLRB General Counsel Peter Sung Ohr issued a memo stating that political and social justice advocacy may be considered protected concerted activity.
In an interview with Law360, current NLRB General Counsel Jennifer Abruzzo stated that, in her view, “…racial justice advocacy where the subject matter has a direct link to workers' interests in being treated equitably is protected activity…”
DETAILS
Jennifer Abruzzo, the General Counsel of the National Labor Relations Board, continues the agency’s push to expand the concept of “protected concerted activity” under the National Labor Relations Act to include “racial justice advocacy.”
The Background:
Under the National Labor Relations Act, employees have Section 7 Rights, which are as follows:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
For decades, the statement that employees have the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” has been the subject of many NLRB rulings and interpretations and, depending on the NLRB’s political make up, is often subject to broader or narrower interpretations of what constitutes “protect concerted activity” under the Act.
Mutual Aid or Protection Need Not Be Directly Connected To One’s Own Employer
In March 2021, under newly-inaugurated President Biden—following the unprecedented Inauguration Day firing of sitting NLRB General Counsel Peter Robb—the new-acting NLRB General Counsel Peter Sung Ohr issued a lengthy General Counsel Memo [in PDF here] to all of the NLRB’s regional offices.
Ohr’s March (2021) memo discussed at length the new General Counsels approach to “protected concerted activity.”
In the Memo, Ohr discussed “Mutual Aid or Protection in Today’s Landscape,” stating (p. 2):
The “mutual aid or protection” clause covers employee efforts to “improve their lot as employees through channels outside the immediate employee-employer relationship,” as well as activities “in support of employees of employers other than their own." [Emphasis added.]
Ohr further went on to state (p.2-3):
Additionally, employee advocacy can have the goal of “mutual aid or protection” even when the employees have not explicitly connected their activity to workplace concerns. This includes employees’ political and social justice advocacy when the subject matter has a direct nexus to employees’ “interests as employees.” Examples include: 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; and protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids. 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. [Emphasis aded.]
Again, this memo was issued nearly a year ago.
Whole Foods, Home Depot and Kroger in the Crosshairs Over Black Lives Matter ‘Activism’
In December 2021, the National Labor Relations Board issued a complaint against Whole Foods over the company’s instructing its employees “to remove face masks and other apparel supporting the Black Lives Matter movement.”
“The filing also accuses the company of firing, sending home and otherwise punishing employees around the country during 2020 for wearing apparel such as BLM masks or pins,” reported Bloomberg at the time.
Prior to the Whole Foods complaint, the NLRB issued a complaint against Home Depot for “selectively and disparately” punishing workers who had the initials “BLM” on their Home Depot aprons.
In yet another case, in November 2021, the Seattle region of the NLRB issued a complaint against Kroger for “barring employees from wearing Black Lives Matter buttons at work.”
At present, none of the aforementioned cases have been resolved.
NLRB General Counsel Abruzzo and ‘Racial Justice Advocacy’
While the NLRB’s case against Whole Foods has not yet been resolved through the NLRB’s process, this week, General Counsel Abruzzo shared her views with Law360 (paywall).
"If workers' concerted actions involve addressing racial inequity, bias and/or discrimination in their workplace and their employer acts unlawfully in response, we will prosecute such statutory violations," Abruzzo told Law360 in an email. [Emphasis added.]
While this view is consistent with past interpretations of “protected concerted activity,” GC Abruzzo went even further.
"I believe that racial justice advocacy where the subject matter has a direct link to workers' interests in being treated equitably is protected activity under our statute," Abruzzo told Law360.
Ultimately, The Courts May See Things Differently
"For any of these cases to be successful, there has to be a very clear articulation of the relationship between racial discrimination and employees' terms and conditions of employment," Michael Duff, a University of Wyoming College of Law professor and a former NLRB staff attorney told Law360.
"If the theory is that because employees have BLM masks, that's the first step to them engaging in more classic labor activity, I think you're going to have a problem with that in the circuit courts," he stated. "You need facts to demonstrate that this is a real precursor to activity that is clearly protected and concerted."
Although the NLRB continues a more expansive view of protected concerted activity, ultimately, its actions will come under review of the judiciary.
If the Courts do, at some point, reverse the NLRB in these types of cases, it would not be the first time the Courts have ruled that the NLRB overstepped its bounds.