You may recall that in 2006, there were nationwide demonstrations to protest pending legislative proposals imposing greater restrictions and penalties on immigrant employees and their employers. Several employees who participated in those demonstrations and were disciplined led to the filing of Unfair Labor Practice Charges with the National Labor Relations Board (“Board” or “NLRB”). The employees claimed that they were engaged in “protected concerted activity.” Under Section 7 of the National Labor Relations Act (“Act”), an employer may not discipline employees engaged in protected concerted activity. Such activity is generally defined as two employees, or one employee on behalf of him or herself and others, seeking some change in wages, hours, or other “terms and conditions of employment.” Although the Act is most often thought of as involving employers and unions, an employee’s right to engage in protected concerted activity exists, even if no union is on the scene.
On July 22, 2008, the Board’s General Counsel, Ronald Meisburg, issued a Guideline Memorandum describing the circumstances under which the NLRB would process Unfair Labor Practice Charges involving political advocacy. While expressing some concern that the NLRB did not want to equate political disputes with labor disputes, or promote the use of strikes and similar activity for resolving political questions, where there is a direct nexus between an employment-related concern, and the specific issues that are subject of the political advocacy, then the political advocacy may be protected activity.
This was not the first time the NLRB addressed the nexus between political activity and employment protection. Meisburg noted that the NLRB held that a Kaiser Engineering employee who wrote members of Congress on behalf of his fellow workers opposing a competitor’s efforts to obtain resident visas for foreign engineers was engaged in protected activity under Section 7. The U.S. Supreme Court has held that the Act’s mutual aid and protection clause protects employees when they are engaged in concerted activities in support of employees of employers other than their own, or seek to improve their lot as employees through channels outside the immediate employer-employee relationship. As other examples, employees were engaged in protected political activity when they wrote letters to the Coast Guard requesting that their employer, a casino boat operator, be required to hire only engineers with certain licenses. Employee complaints to a hospital accreditation commission concerning staffing levels and the number of patients assigned to each staff member were found to be intimately related to conditions under which employees worked. Where employees distributed literature suggesting messages to be sent to a city council to ban mandatory drug testing or where an employee circulated a petition calling upon Congress and the President to investigate their employer’s use of government funds for anti-union activities, the employees were held to be engaged in protected activity.
On the other hand, nurses who complained to state agencies about patient care quality, or employees supporting the election of a particular candidate or slate of candidates, without reference to any particular employment-related issue were found to be too attenuated to the employment environment to qualify as a protected activity. Similarly, workers advocating the establishment of a workers’ political party were not engaged in protected activity. The test used by the NLRB is whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.
Applying that standard to the 2006 immigration demonstrations of 2006, the General Counsel concluded that the employee attendance at and support of those demonstrations was, indeed, directly related to employment, and therefore fell within the scope of the “mutual aid or protection” clause of the Act. However, that does not end the inquiry.
Once it is determined that particular political advocacy falls within the mutual aid and protection clause, it must then be determined whether the means employed to carry out that advocacy was protected. That may depend upon the time when the political activity occurs; whether the employer’s rules prohibiting certain conduct as it applies to political activity is discriminatorily enforced; or whether an employee may absent themselves from scheduled work to attend the political demonstration. Under the NLRA, employees have the right to strike to protest an employer’s unfair labor practices, or to apply economic pressure on that employer to agree to changes in wages, hours, or working conditions typically sought during contract negotiations. However, when employees leave work in support of a political cause, they are not withholding their services as an economic weapon since the underlying grievance is not usually one which their employer can address, or fix. Accordingly, when employees absent themselves from work for a political cause which falls under the mutual aid and protection clause of the NLRA, they may still be subject to discipline, since they have effectively gone on an unprotected strike. In other words, protected conduct may become unprotected if the means employed are unlawful.
In summary, the General Counsel set forth the following principles to be considered in determining whether political activity, and the means employed to express it, is protected by the NLRA:
1. Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees’ own time and in non-work areas, is protected;
2. On-duty political advocacy for or against a specific issue related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and
3. Leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally applied work rules.
The General Counsel has instructed all of the NLRB’s Regional Offices to submit to the Division of Advice any Unfair Labor Practice Charges involving political advocacy which has resulted in the discipline of employees. As a consequence, employers should exercise care before disciplining employees who engage in political advocacy. The subject matter of the advocacy; its relationship to the employee’s working life; the time, place and manner in which the advocacy occurs; the employer’s existing work rules which may affect political advocacy; and the consistency with which the employer’s rules have been enforced, are all relevant considerations.