Political Activity Under the NLRA

BNA's Daily Labor Report (subscription required) has reported on General Counsel's Meisburg's preview of a forthcoming memo on whether political activity will be considered protected under the NLRA.  The DLR reports:

Speaking Feb. 20 at an American Bar Association conference, National Labor Relations Board General Counsel Ronald Meisburg said he soon will issue a guideline memorandum to regional office personnel outlining how he wants to handle unfair labor practice cases alleging that employees were disciplined unlawfully for participating in rallies regarding immigration legislation or engaging in other political activity. The primary issue in such cases is whether the political activity constitutes protected concerted activity under the National Labor Relations Act, Meisburg said. He observed that the U.S. Supreme Court has found that employees do not lose NLRA protection when they try to improve their lot as employees through channels other than directly with their employer.

However, political activity that has too attenuated a connection with the worker's employment would not be covered by the act, the general counsel said. He called it "a knotty issue" for NLRB and said he hopes the memo will enable labor law practitioners and their clients to "make reasoned decisions" about situations involving employee political activity. Under the analytical framework to be explained in the upcoming guideline memo, protected activity must involve advocacy for or against a "specific proposal," not a general idea or a candidate or political party, and must have a direct nexus with the interests of the employees as employees, Meisburg said. He explained that if the political activity qualifies as protected concerted activity, regional personnel, guided by the Division of Advice, then must balance the employee's right to engage in such activity with the employer's legitimate business interests in deciding whether to issue an unfair labor practice complaint. 

It's hard to judge without the details, but at first blush, this analysis appears reasonable.  The proof is in its actual application, of course.  It is heartening, therefore, that Meisburg stated that participation in the 2006 "Day Without Immigrant" rallies appears to meet this test.  This issue also has a bit of intersect with the Locke v. Karass currently pending before the Supreme Court.  As Paul posted earlier, Karass addresses the extent to which union can charge employees for extra-unit litigation expenses.  Like Paul, the grant of cert. troubles me, but Meisburg's statement provides a small hope that at least someone is still serious about recognizing that employees might actually care about things that occur outside of their workplace.

-JH