NLRB General Counsel memo signals broader enforcement

By Jeff Jones
Special to the UCBJ

In one of his first moves, President Joe Biden fired then General Counsel of the National Labor Relations Board (“NLRB” or “Board”) Peter Robb.  The Office of the General Counsel is the prosecutorial arm of the Board and has traditionally operated with a degree of independence and insulation from political changes.  The General Counsel is appointed by the President and confirmed by the Senate for a four-year term.  Nevertheless, President Biden removed Mr. Robb before his term ended.

On March 31st of this year, the Acting General Counsel, Peter Sung Ohr, issued a Memorandum setting out the intentions of the Office of General Counsel with respect to “Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines” under the National Labor Relations Act (“Act”).  This Memorandum signals the Office of the General Counsel’s intent with respect to more broadly enforcing certain employee rights under the Act.

The primary focus of the Memorandum is on Section 7 of the Act, which provides protection for “concerted activities”engaged in for “mutual aid and protection.”  Where both factors are met, an employer may not take action against an employee on the basis of their activity.  Note first that this right applies to all employees in workplaces within the Board’s jurisdiction – generally speaking employers who conduct over $50,000 of business annually in interstate commerce – not just unionized employers.

Activities for “Mutual Aid or Protection.”  What activities are considered to be for the purpose of “mutual aid or protection?”  Certain activities such as discussing or protesting wages, benefits, hours or working conditions are clear examples of activity engaged in for mutual aid or protection.  The Memorandum notes that a variety of other activities may be considered for mutual aid and protection such as political or social justice advocacy where there is a clear link to the employees’ “interests as employees.”  The Memorandum provided as examples a hotel employee’s interview with a journalist over the topic of how earning the minimum wage impacted her and others like her, as well as how an increase in the minimum wage would do so as well, and a “solo” strike by a pizza shop employee to attend a convention and demonstration where she and others sought an increase in the minimum wage.  

In short, going forward the General Counsel will analyze employee activity related to various social issues with an eye toward determining whether such activities fall within the ambit of “mutual aid or protection” under the Act.  You can bet that where the subject matter of the issue involved in the activity relates in some manner to the workplace the Board will be very likely to find the activity protected.  

Concerted Activities.”   The second focus of the Memorandum involved whether activity is “concerted.”  To receive protection the employee action must be “concerted.”  The Board generally finds activity “concerted” when it is “engaged in with or on the authority of other employees,” or where an employee seeks to “initiate or to induce or to prepare for group action.”  For example, employee discussion of their concerns over wages, hours or other working conditions has long been viewed as “concerted” as such discussions are a preliminary step to organizing activity.

The Memorandum stated that although “contemplation of group action may be indicative of concerted activity, it is not a required element.”  Further, no “magic words” are required for a discussion or activity to be concerted.  These comments and others make it clear that the General Counsel will view discussions related to workplace concerns such as wages or working conditions as inherently concerted and as such, protected from retaliation by employers.

In addition, the Memorandum pointed to issues such as workplace safety, or racial discrimination, as examples of subjects where discussion of same would be viewed as inherently concerted.  Clearly, the General Counsel will take a broad view of which subjects of discussion or action are viewed as concerted and thus protected.

Conclusion In view of this Memorandum and the Board’s coming shifts in emphasis, employers are well advised to review their policies that relate to employee discussion and to consider carefully contemplated disciplinary actions that involve employee comments or discussions that in any manner touch on workplace concerns. 

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

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