NLRB Holds That Employee Activity on Behalf of Non-Employees is Unprotected.
In Amnesty International, Inc., the National Labor Relations Board held that the employee activity in support of unpaid interns did not amount to protected concerted activity, because the activity was not protected. Specifically, employee support for nonemployees is not “for the mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act.
Amnesty International’s Washington, D.C. office was staffed by approximately 25 employees and 15 uncompensated interns. A group of the interns planned to write a petition seeking to be compensated for their work. The paid employees assisted with the drafting of the petition and all but a few of the employees joined the interns in signing the petition. Unbeknownst to the employees and interns, Amnesty had been developing a paid internship program. Amnesty’s executive director announced the program at an employee meeting. The next day, the employees and interns delivered the petition to the executive director. During subsequent meetings, the executive director stated she was “disappointed” with and “embarrassed” by the petition. An administrative law judge found these statements violated Section 8(a)(1) of the NLRA. A majority of the Board reversed that decision.
The Board concluded that the interns were not employees because they were unpaid. Accordingly, the employees’ activity advocating only for non-employees is not “for the mutual aid or protection” within the meaning of Section 7 of the NLRA. Because there was no evidence that the employees joined the petition for any reason beyond supporting interns’ effort to be paid, the activity was not protected. Additionally, the Board found that even if the interns were employees, the executive director’s comments were not coercive, and, thus, did not violate the NLRA for that reason, as well. Member McFerran, who dissented from the majority’s holding that the interns were non-employees and employee activity in support of interns is not protected, nonetheless agreed with the majority that the executive director’s statements were not coercive.
The primary takeaway here is that the current Board will find that employee activity in support of nonemployees – including the working conditions of nonemployees – is not protected activity.