Poyner Spruill LLP

On March 31, 2021, Peter Sung Ohr, Acting General Counsel of the National Labor Relations Board (NLRB) issued Memorandum GC 21-03 to all regional field offices describing changes to enforcement priorities under Section 7 of the National Labor Relations Act. Specifically, GC 21-03 notes that the Board will be “robustly enforcing the Act’s provisions that protect employees’ Section 7 rights,” noting disagreement with two recent decisions that have restricted those protections. The memo notes that there will be a broadened definition of concerted activities for mutual aid and protection, as well as a new look at the definition of “inherently concerted conduct.” Additionally, the Board notes that “going forward, cases involving retaliation against concerted conduct will be vigorously pursued.” General Counsel references the COVID-19 pandemic as a reason for refocusing enforcement, stating that the pandemic has presented health and safety issues that have become more prevalent, leading to the need to protect employee’s rights.

NLRA Generally

Section 7 of the NLRA grants employees the right to engage in “concerted” activities for the purpose of “mutual aid or protection.” Essentially, this gives employees the right to come together and discuss issues affecting their workplace and working environment without interference from the employer under specific circumstances. The NLRA applies to almost all private employers but does not apply to federal, state, or local governments. Additionally, Section 7 does not apply only to union activity, and “concerted” activities protected under the NLRA often happen outside of the context of union activity.

It is not uncommon for the NLRB to change its enforcement focus based upon the political administration and current composition of the Board. Generally, the President’s political party will have majority representation on the board, meaning that a change in administration leads to changes for employers. The current Board states that “recent decisions issued by the Board have restricted Section 7 rights for employees,” and they seek to change this.

“Mutual Aid and Protection”

The “mutual aid and protection” piece of the NLRA focuses on the goal of the activity—specifically, whether there is a link between the activity at issue and matters concerning the workplace or employees’ interests as employees. Section 7 applies to union activity and labor organizing as well as other actions employees may take such as discussing or protesting wages, hours, and working conditions. This also includes employees’ political and social justice advocacy when the subject matter is directly related to employees’ interests as employees.

Examples that the General Counsel’s memo give includes: 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 example, the employees’ conduct had the objective goal of improving their workplaces and concerning issues within their employer’s control.

“Inherently Concerted Conduct”

This memo notes that “concerted activity” is described in terms of interaction among employees. Generally, a “concerted” activity involves the employees’ intention to band together to improve wages or working conditions. An employee may act in “concert” even when the discussion only involves a speaker and a listener because this activity is an important first step to employee self-organization. Contemplation of group activity is a good indicator of concerted activity, but it is not a requirement.

General Counsel notes that the Board will consider these and other appropriate actions as “inherently concerted” activity: employees who share information with each other about wages or wage differentials; discussion among employees of changes in their work schedules; discussions regarding job conditions, including whether an employee may be laid off or discharged; discussions concerning workplace health and safety; and discussions about racial discrimination.

Employer Takeaways

  • Moving forward, the NLRB will be more focused on safeguarding employee’s rights. Employers should make sure that their policies are compliant with Section 7 of the NLRA.
  • Employers should keep in mind that there is a more expansive definition of protected conduct that will be enforced in the future.

Employers should be cautious when deciding whether to discipline or discharge employees who have engaged in discussions or activities related to workplace health and safety (specifically as related to COVID-19), social justice issues, or political views