NLRB Releases Additional Advice Memos


Following last month’s release of a slew of advice memoranda, as we reported in our February 2018 E-Update, the National Labor Relations Board’s Office of the General Counsel (OGC) has now released additional advice memoranda. As before, some of these memos were originally prepared years ago, but they were not released to the public until this month. Of particular interest are the following:

  • EZ Industrial Solutions, LLC (August 30, 2017). The OGC found that the employer violated the National Labor Relations Act by discharging 18 employees for participating in the 2017 “Day Without Immigrants” national protest. The employees’ protest constituted a protected strike under Section 7 of the NLRA, which protects concerted activities for employees’ mutual aid or protection. Specifically, the protest was intended to improve working conditions affected by the Trump administration’s immigration policies and over which the employer had some control (mainly through possible interactions with Immigration and Customs Enforcement). Alternatively, even if the protest were not a protected strike, the OGC found that the employer applied its attendance policy in a discriminatory manner to justify terminating the employees for engaging in protected concerted activity.
  • Postmates, Inc. (February 12, 2018). The OGC stated that an employer had not been properly served with an NLRB charge. After attempted hand-delivery failed, the charge was emailed to the employer. However, under the Board’s rules, service may be made by email only “with the permission of the person receiving the charge,” which had not been obtained.