NLRB Acting GC Signals Intent to Take Expansive View of Protected Concerted Activity
In Memorandum GC 21-03, National Labor Relations Board Acting General Counsel Peter Sung Ohr addressed employees’ right to act together to improve their working conditions, a right granted to employees by Section 7 of the National Labor Relations Act (NLRA). Evident by the subject of the memo, the GC indicated his intention to vigorously enforce employees’ right to engage in protected concerted activity. GC Ohr referenced current issues like employee health and safety during the COVID-19 pandemic, social justice initiatives, and the push to raise the minimum wage. Allusions to these charged subjects should put employers on notice that employee activities around these issues will likely be considered protected concerted activity notwithstanding that the activities may not directly implicate an employee’s terms and conditions of employment.
“Mutual aid or protection”: Among other rights, Section 7 of the NLRA endows employees the right to “engage in concerted activities for the purpose of…mutual aid or protection.” Citing to Obama Board decisions, GC Ohr posits that employee conduct may be protected where there is a link between the activity and employee workplace concerns. This, according to GC Ohr, includes activities to improve working conditions outside of the typical employer-employee channels. Specifically, GC Ohr cites an employee’s interview with a journalist regarding the impact of earning only minimum wage, a “solo” strike by an employee to attend a convention where she and others advocated for a $15/hour minimum wage, and “protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration aids.” GC Ohr continued that employee activities concerning “a variety of societal issues” is likely to be protected by Section 7 of the NLRA. Giving a brief nod to Trump Board decisions narrowing the interpretation of protected concerted activity, GC Ohr highlighted the viable pathways to establish that employee activity implicates Section 7 rights and encouraged regional offices to utilize those pathways to conclude that employees have engaged in activity for “mutual aid or protection,” and therefore enjoy the NLRA’s protections.
“Inherently Concerted” Activity: GC Ohr’s memo also signals an intention to find certain employee activity regarding “vital interests” to be “inherently concerted.” According to GC Ohr, an employee may engage in “inherently concerted” activity even where group action has not yet been contemplated, or where other employees do not agree with the complaint or join the employee in protest. Noting that the Board has typically confined “inherently concerted” activity to issues such as wages, work schedules, and job security, GC Ohr referenced Division of Advice memos finding that discussions concerning health and safety, racial discrimination, and other subjects to be “inherently concerted” activity. GC Ohr further stated that he will be looking to present to the Board suitable cases to address these actions and other conduct that may be considered “inherently concerted” activity.
Takeaways: It should come as no surprise that a more labor-friendly administration will look to broaden what activities constitute protected concerted activity. Employers should prepare for the GC to actively prosecute cases where employee conduct has even an attenuated relationship to “mutual aid or protection,” as well as cases that will seek to expand the type of subjects considered “inherently concerted.” Employers must be mindful that the current GC and, soon, a majority of the Board is likely to consider employee activity in these areas to be protected and should exercise caution when such issues arise.