The National Labor Relations Act (NLRA), which established regulations for employer and employee relationships, is a critical piece of legislation in the United States. It defines specific rights and protections for employees, including the recognition of union representation and the ability to engage in collective bargaining. One of the most important provisions of the Act is Section 7, which grants employees broad rights to engage in “concerted activities” for the purpose of mutual aid or protection.
In recent years, the National Labor Relations Board (NLRB), which is responsible for enforcing the NLRA, has undergone significant changes, including proposed changes from its new General Counsel, Jennifer Abruzzo. This article examines the potential impact of one recent NLRB Administrative Law Judge (ALJ) decision and how it could affect the definition of protected activity under the NLRA.
Background on the National Labor Relations Act and Section 7
Section 7 of the NLRA provides employees with the right to engage in concerted activities for the purpose of mutual aid or protection. This means that employees can join together to improve their working conditions, bargain collectively with their employer, and advocate for better wages, benefits, and job security. Protected concerted activity can be informal, such as two or more employees discussing their working conditions during a break, or can take the form of a collective action, such as a slowdown or work stoppage. Employers are prohibited from taking adverse action against employees who engage in protected concerted activity.
Proposed changes by NLRB General Counsel Jennifer Abruzzo to protect employee rights
The current NLRB General Counsel, Jennifer Abruzzo, has made no secret of her desire to protect employee rights under Section 7 of the NLRA. According to her, the current case law has not done enough to protect these rights, and she is seeking to overhaul the current law to make it easier for employees to engage in protected concerted activity. Abruzzo has stated that she intends to do this by expanding the definition of protected activity and making it easier for employees to prove that they were engaged in concerted activity.
ALJ decision on grocery store employees wearing “Black Lives Matter” buttons
In July 2021, an ALJ held that grocery store employees who wore “Black Lives Matter” buttons on their uniforms were engaged in protected concerted activity. The decision came after an unfair labor practice charge was filed against the employer by the United Food and Commercial Workers Union. The ALJ found that the employees acted to advance their interest as employees to work in an anti-racist, pro-civil rights, and pro-justice workplace. The employer was found to have violated the Act when it barred the employees from wearing the buttons in the workplace and sent several employees home who refused to take them off.
Analysis of the decision’s potential impact on the definition of protected activity
The decision has significant implications for the definition of protected concerted activity under the NLRA. It establishes that employees can engage in protected activity even if it is not explicitly related to wages, hours or working conditions. The ALJ found that the Black Lives Matter movement was inherently concerted activity because it was focused on the employees’ interest in creating an anti-racist and just workplace environment. Additionally, the decision makes it clear that individualized comments made in support of protected concerted activity can be considered concerted, even without proof of coordination with other employees.
Employers need to consider inherently concerted activity and workplace conditions
Employers must consider what ideals are permeating their workplaces that may be considered inherently concerted activity. The decision in the Black Lives Matter case illustrates that employees may engage in protected concerted activity in support of anti-discrimination and anti-racism efforts in the workplace. Employers should also take into account changes in the national conversation around social justice issues and consider any public statements made in support of social movements that may be viewed as inherently concerted activity.
Conclusion and implications for employers
The decision in the Black Lives Matter case opens the door for an expanded definition of protected concerted activity and could lead to more employee actions based on social ideals and movements. Employers should take proactive steps to review their workplace conditions and ensure they are not creating a hostile environment for employee expression, including expressions related to social issues. Employers might also consider taking stock of whether, and to what extent, they choose to make public statements of support regarding social issues or movements. Ultimately, employers who respect employees’ rights to engage in protected concerted activity, even if such activity occurs outside of the traditional workplace milieu, are likely to build stronger and more productive relationships with their workforces. Employers must embrace positive expressions of employee advocacy, which reflect a diverse workforce’s richness and creativity, even on social issues. The expansion of protected concerted activity brings new promises of worker power to engage in advocacy beyond the workplace and creates greater obligations for employers resisting such workforce expression.