Friday, July 25, 2008

NLRB GC Memo Addresses Political Activitiies By Workers

Nlrblogo Thanks to Dennis Walsh for pointing out to me this piece in the July 23rd BNA Daily Labor Report (subscription required) about a new General Counsel Memo by Ronald Meisburg about political activity by workers:

National Labor Relations Board General Counsel Ronald Meisburg July 22 issued a guideline memorandum describing a framework for analyzing unfair labor practice charges involving discipline of employees who engage in political advocacy, such as participating in pro-immigration demonstrations.

Employees' right to engage in concerted activity for "mutual aid or protection" is protected under Section 7 of the National Labor Relations Act, Meisburg said in the memo to regional office personnel (GC 08-10). After reviewing U.S. Supreme Court and board precedent, Meisburg wrote, he found that the test for determining whether political advocacy is protected under Section 7 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."

However, Meisburg said qualifying political advocacy can lose the protection of the NLRA if it is carried out by unprotected means. Political advocacy that meets the basic test, is nondisruptive, and takes place during the employee's own time and in nonwork areas is protected, the general counsel said. But he found that engaging in qualifying political advocacy while on duty, and leaving or stopping work to engage in it, "is subject to restrictions imposed by lawful and neutrally-applied work rules."

Personally, I am troubled by the direct nexus test advocated for here.  I think Eastex and its progeny give more leeway to employees to advocate for political issues that may impact the workplace.

This proposed test also gives with one hand and takes away with another: it protects political activity related to employment, but then say a worker can be fired if he or she walks off the job to support that political activity?  Isn't the NLRB  charged with protecting Section 7 activity and not protecting employers?

PS

https://lawprofessors.typepad.com/laborprof_blog/2008/07/nlrb-gc-memo-ad.html

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Listed below are links to weblogs that reference NLRB GC Memo Addresses Political Activitiies By Workers:

» NLRB General Counsel Memo on Political Advocacy from Adjunct Law Prof Blog
On July 22, 2008, the General Counsel issued a memo on “ULPs Involving Political Advocacy,” Memorandum GC 08-10, available here. This memo was apparently triggered by the GC's consideration of charges protesting the discipline of employees who particip... [Read More]

Tracked on Jul 27, 2008 9:36:43 PM

Comments

I agree with Paul. This is a needlessly cramped view of Section 7 protection. If conduct is protected, there are well recognized rules respecting when the protection may be lost. Engaging in a work stoppage, for example, would generally not deprive an employee of the protection of the Act unless it was part of a pattern of intermittent work stoppages, the conduct was in effect a partial strike, or the conduct was violent. Absent those kinds of qualifications Eastex makes very clear that the "political" conduct is protected. I think this memo results from the rather unhelpful analyses emanating from the GC's office following the 2006 immigration rallies in which the Section 7 nexus was consistently ducked in lieu of unpersuasive Wright Line types of dismissals. I'm not sure the memo adds anything, however. For a full discussion of these issues in the context of immigration rallies, see my article from last year at http://hq.ssrn.com/submissions/MyPapers.cfm?partid=660895

Posted by: Michael Duff | Jul 26, 2008 9:31:53 AM

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