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Politics and the Workplace: National Labor Relations Board's GC Offers Guidance on When an Employee's "Political" Activity is Protected
July 28, 2008
With the presidential election season squarely upon us, politics is a hot topic across the country, both at the kitchen table and in the workplace. In what appears to be a coincidental case of good timing, prompted by the 2006 nationwide demonstrations in opposition to proposed immigration legislation, the General Counsel of the National Labor Relations Board (the "Board") recently released a “Guideline Memorandum on Unfair Labor Practice Charges Involving Political Advocacy.” The memorandum, which seeks to clarify when employee involvement in political activities is, and is not, protected under the National Labor Relations Act (the "Act"), serves as an important reminder to unionized and nonunion employers alike of their legal rights and obligations with respect to the often sensitive and emotionally-charged issue of politics in the workplace.
Section 7 of the Act grants employees the right to engage in “concerted activity” for their “mutual aid or protection.” An employer who interferes with an employee’s proper exercise of this right commits an unfair labor practice. “Interference” generally means punishing the employee in some manner for engaging in the protected conduct, from imposing more onerous job duties and discipline, to firing the employee.
Legal disputes over what constitutes “protected concerted activity” typically arise in the context of union-related activities, such as organizing campaigns and strikes, but concerted activity also includes individual activity where individual employees seek to initiate, induce or prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.
In Eastex v. NLRB. In Eastex, the Supreme Court held in 1978 that employees also are engaged in protected concerted activity when they participate in such activity “in support of employees of employers other than their own,” or when they seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.”
Relying, in part, on the Eastex decision, the NLRB’s General Counsel, Ronald Meisberg, explains in the Guideline Memorandum that the Board “has long extended…Section 7 protection beyond the confines of the employment relationship to concerted political advocacy when the subject of that advocacy has a direct nexus” to a “specifically identified employment concern of the participating employees.” Thus, for example, nurses who spoke to state agencies about staffing levels were found by the Board to be protected under Section 7, whereas nursing personnel who complained about patient care quality were not deemed to be protected. Similarly, the Board has held that employers may ban the distribution in the workplace of “purely political tracts” advocating a particular party or candidate which fail to identify a specific employment-related issue.
Importantly, however, the Board’s (and the courts’) inquiry does not stop here. Even if a sufficient connection is established between the employee’s political advocacy and a specific working condition, an employee’s political activity will lose its Section 7 protection if it is carried out by unprotected means.
With respect to the “means” issue, the GC’s Guideline Memorandum first considered protected activity that takes the form of either solicitation of other employees for their support, or distribution to co-workers of protected materials, such as a union leaflet. As a general rule, employees are permitted to engage in political advocacy of employment-related matters during nonwork time in nonwork areas, unless the activity disrupts work operations or interferes with the employer’s right to “maintain discipline” in the workplace. Moreover, employees engaged in otherwise protected activity who break one of these rules (i.e., distribute leaflets in work areas) may not be disciplined or discharged for that conduct if other employees previously had been allowed to engage in similar kinds of activity without repercussions. In other words, so-called “no-solicitation” and “no-distribution” rules must be consistently enforced to be deemed lawful when enforced against a particular employee who is engaged in otherwise protected activity.
GC Meisburg next considered protected activity that takes the form of walkouts or strikes. With some exceptions, an employer may not discipline or discharge employees who participate in a walkout or strike if the conduct is “for the purpose of obtaining some improvement in their working conditions from their employer.” If, however, the employees’ strike is not directed at an employer “who has control over the subject matter of the dispute,” the strike is, in most instances, unlawful. Thus, when employees strike in support of a political cause over which the employer has no control, the strike is not protected activity, even though the subject of the strike, itself, may be a protected issue.
Consider, for example, the issue of workplace drug testing, which is normally a protected issue because it directly pertains to working conditions. If employees walk out in protest over their employer’s drug testing policy, that conduct might well be protected activity, but if they strike to protest a government-mandated drug testing policy, the strike would not be protected because their employer has no power to affect the government policy.
Applying this two-part analysis to the issue that engendered the GC’s Guideline Memorandum – employee participation in the 2006 demonstrations against proposed immigration legislation – Meisberg first noted that, at the time the cases were decided by the Board, it did not address whether the activity was protected because it was not necessary to do so to resolve those disputes. Rather, the Board “assumed” that the participation in the demonstrations was protected by Section 7.
Now, however, the GC declares that, as to the subject matter of the activity, employee participation in those demonstrations was indeed protected because the demonstrations were “in protest, inter alia, of proposed legislation that would require prospective employees to obtain a variety of clearances before they could work in the country and would mandate that prospective employers would verify each employee’s paperwork or risk steep penalties.” Such legislation, according to the GC, had the potential to cause employers “to forgo hiring even lawful immigrants.” As a result, the controversial legislation “could directly affect the demonstrators’ job opportunities and job security, thus potentially affecting their interests as employees.”
Under the second step of the analysis, however –the “means” test – the GC determined that the employees’ participation in the immigration demonstrations was unprotected because their absence from work constituted an unlawful “strike” involving a matter over which their employers had no control, namely, national immigration policy. Thus, the pro-immigration demonstrators had a “protected object,” but they ultimately were unprotected under Section 7 of the Act because of the means – the form of protest – employed.
While certain employee political advocacy is deemed to be protected activity, the Board is wary of “equat[ing] political disputes, or promot[ing] the use of strikes and similar activity for resolving what are essentially political questions.” The two-part nexus/means test is the Board’s attempt to draw the “difficult” line between protected concerted activity and unprotected political activity.
In summary, in the Guideline Memo, the GC distilled the following principles from Board authority which may be helpful to employers, and to the Board's Regional Directors, in resolving cases involving the question of whether political advocacy is protected under the Act:
- 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 nonwork areas, is protected;
- 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
- 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.