Following the memorandum’s release, an NLRB spokesperson said the Board’s attorneys “have been aggressive and effective in ensuring that workers’ rights are being protected during this difficult time. Today’s memo summarizes just a handful of the many cases in which the Agency is actively protecting workers from discrimination during the pandemic.”
3. The NLRB’s Division of Advice stated that political advocacy related to police reform is not NLRA-protected activity. UFCW 1994 MCGEO, 05-CA-261825 (Adv. Mem. Aug. 13, 2020, released Sept. 14, 2020). In an Advice Memorandum, the Division of Advice concluded the employer did not violate the NLRA by discharging an employee for testifying before a local county council to advocate for police transparency and accountability legislation. The employee worked as a union representative for a labor organization representing uniformed police officers, among others. Following the discharge, the union filed a grievance and an unfair labor practice charge. The Region submitted the case to the Division of Advice, asking whether the charge should be deferred (under Dubo Manufacturing Company) or dismissed. The Division of Advice agreed with the Regional Director that the charge should be dismissed because the employee’s activity, advocacy for police reform, had nothing to do with the terms and conditions of employment with the employer. Rather, the Division of Advice found the employee acted in the interest of the community at large. As a result, such activity was not protected under the NLRA.
4. While election petitions filed with the NLRB have declined during the pandemic, unions assert that workers’ interest in forming unions has stayed steady amid rising unrest. The NLRB reported that 800 union election petitions have been filed since mid-March, which is down from the prior four years when the NLRB processed between 1,100 and 1,400 representation cases over the same period. The sharpest declines came early in the pandemic, but the numbers have steadied recently. In April, only 69 representation petitions were filed. and 125 were filed in May, compared to 213 and 201 in the same months last year, respectively. NLRB data show the agency handled 153 petitions in September, compared to 173 in September 2019 and 145 in September 2018. Meanwhile, some unions report they have maintained a steady organizing pace during the pandemic by adapting to online organizing.
5. The NLRB found more than 16,000 professional interpreters and translators who were members of a professional association were not employees of the association. Registry of Interpreters for the Deaf, 370 NLRB No. 18 (Sept. 11, 2020). The NLRB found a professional association for deaf interpreters did not violate the NLRA by maintaining civility and anti-trust policies that restricted their members from sharing information about their wages, terms and conditions of employment, and views regarding unionization because the relationship with its members was not akin to an employment relationship. The policies applied only to the members, not to the association’s employees, although some members were also employees of an organization related to the association. Contrary to the administrative law judge, who found the policies implicated the NLRA Section 7 rights of the association’s members, the NLRB found the policies covering only members and specifying their rights as members did not violate the NLRA. The members were not employees of the association and therefore did not have Section 7 protections as to the association.