Workers across the country are being encouraged by local grassroots organizations and coalitions to participate in the National Day of Action for Immigrant Justice scheduled for Monday, April 10, 2006. Some of your employees may leave work or fail to report for work in order to participate in this “massive pro-immigrant demonstration.”  In addition to the potential employee and public relations issues disciplinary action could create, employers should be mindful that participation in such activities may constitute protected concerted activity under the National Labor Relations Act (NLRA).

How could this be? Isn’t this really political speech?

Section 7 of the Act grants employees the right to:

self-organize, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

29 U.S.C. Sec. 157. (emphasis added). In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the U.S. Supreme Court analyzed the political speech issue and stated that “[there] may well be types of conduct or speech that are so purely political or so remotely connected to the concerns of employees as employees to be beyond the protection of [Section 7].” However, the Supreme Court also stated that these protected concerted activities can include the action of employees on behalf of workers employed by other employers. According to the Court, this protection is not lost simply because the activities are outside of the “immediate employee-employer relationship.” The justices ultimately expressed the limit of the protection as the point where the relationship of the conduct and the employees’ interests “becomes so attenuated that an activity cannot fairly be deemed to come within the ‘mutual aid or protection’ clause.”

While the Supreme Court has articulated a vague standard, the National Labor Relations Board had previously considered whether employee efforts to impact immigration legislation would constitute protected concerted activity. In Kaiser Engineers, 213 NLRB 752 (1974), enforced, 538 F.2d 1379 (9th Cir. 1976), engineers protested a contemplated loosening of immigration laws by writing letters to their congressional representatives. These activities were found by the Board to constitute protected concerted activity because the employees were expressing their fear that the expanded importation of foreign engineers would impact their job security.

The impact that current immigration reform proposals would have on current and future employees is certainly the subject of much debate. There can be little doubt, however, that there would be some impact. Further, the intent of the events of April 10th clearly is to influence the legislative process which would determine the extent of any such impact. Thus, employee participation in such events may be considered to be concerted activity protected by federal law, depending on the specific circumstances at issue. Employers should carefully consider this potential as well as any public relations issues before deciding to discipline employees for their participation.

Employers should also be mindful of the potential impact of federal, state and local discrimination laws. Likewise, employers with collective bargaining agreements should evaluate whether “no strike” clauses provide additional defenses to NLRA based claims.

Should you require assistance in assessing this risk and with developing effective strategies for your workplace, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 800-603-1252 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the April 7, 2006 issue of the National eAuthority.


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