NLRB Memo Addresses Workers' Right To Engage In Political Advocacy

On July 22, 2008, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued a guidance memorandum (GC 08-10) to its Regional Directors, Officers-in-Charge and Resident Officers addressing unfair labor practice (ULP) charges involving political advocacy.

The impetus for the General Counsel’s memorandum was a series of ULP charges filed in late 2006 involving employers that allegedly disciplined employees for participating in nationwide and local demonstrations. The demonstrations at issue opposed pending legislative proposals that would impose greater restrictions and penalties on immigrant employees and their employers.

The General Counsel concluded that the purpose of such political demonstrations are covered by the “mutual aid or protection” clause of the National Labor Relations Act (NLRA), but that the NLRB still must determine whether the means employed to carry out the advocacy is protected. The General Counsel advised that employers may continue to enforce lawful and neutrally-applied work rules to on-duty political advocacy and/or to employees who leave or stop work to engage in political advocacy.

Political Advocacy As “Protected Activity”

Section 7 of the NLRA 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.” A key issue in political advocacy cases is whether an employee’s attendance at a political demonstration constitutes concerted activity for “mutual aid or protection.”

The General Counsel reiterated that under certain circumstances, political advocacy activities may fall within Section 7’s ambit. At the same time however, the General Counsel cautioned against extending this principle in a manner that would frustrate national labor policy. Consequently, the General Counsel noted that political advocacy activities may be covered by Section 7 if 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 this standard, the General Counsel found that the 2006 demonstrations referenced above constituted Section 7 activity because “immigrant employees and even non-immigrant employees could reasonably believe that the bill could impact their interests as employees. For these reasons, employee attendance at and support of these demonstrations in our view was within the scope of the `mutual aid or protection’ clause.”

Limits To The Protection For Political Advocacy

That Section 7 encompasses a particular political advocacy activity does not end the NLRA analysis. As the General Counsel makes clear, the next step is to “ascertain whether the means employed to carry out that advocacy is protected.” On this particular issue, the General Counsel offered three general principles:

• Non-disruptive political advocacy for or against a specific issue related to a specifically identified employee concern, that takes place during employees’ own time and in non-work areas, is protected;
• On-duty political advocacy for or against a specific issue related to a specifically identified employee 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.

The General Counsel memorandum confirms the NLRB’s position that an employee’s political advocacy activities may be protected by Section 7 of the NLRA. Such activities are more likely to be deemed protected if they do not disrupt the workplace and if they take place during non-work time and in non-work areas. Moreover, employers may be able to reduce potentially disruptive activities through lawful, neutrally-applied policies regarding non-work activities in the workplace.

In sum, employers should carefully consider NLRA implications, as well as potential public relations issues, before deciding to discipline employees for their participation in political advocacy activities.

Note: This article was published in the September/October 2008 issue of The Employment Law Authority.