NLRB on Protected Concerted Exercise beneath the NLRA

Although the time is ticking for Peter Ohr’s tenure as acting General Counsel of the NLRB and Jennifer Abruzzo’s nomination to the Senate is currently pending, Ohr continues to actively advance a work-promoting agenda. On March 31, Ohr issued a memorandum to the regional staff of the National Labor Relations Board advocating a significant expansion of employee behaviors that could be classified as protected, concerted activities (sometimes referred to as PCA).

Even more worrying for employers, Ohr committed to “robustly” enforcing the National Labor Relations Act (NLRA) and “vigorously” pursuing claims for illegal retaliation against employers. Since sheltered, concerted activities are a core principle of labor law, their potential expansion has far-reaching implications for virtually every union and non-union workplace.

The NLRA protects workers’ rights to sheltered, concerted activities, with or without a union. In general, to qualify for protection under the NLRA, behavior must be both:

  1. Refer to workplace and conditions of employment concerns of workers, which “protect” them.

  2. To be occupied by two or more employees or by one employee with the authority of other employees, which it does “in concert”.

In Ohr’s opinion, this standard is too narrow. He believes that employee discussions on “advocacy for political and social justice”, “societal issues” and other issues that are “not explicitly related to the workplace” may also be eligible for protection. With regard to the concerted element, Ohr believes that the staff discussion on certain workplace issues can and should be viewed as “inherently concerted” even if the discussion is only between two staff members.

If the NLRB’s regional staff adheres to the expanded view requested by Ohr, companies can expect an onslaught of unfair labor practice charges – including those of non-union workers – and more detrimental outcomes against employers on these charges.

While most employers are well aware of and consider discrimination and retaliation based on the EEO, sometimes employers do not consider potential claims based on the NLRA. In the future, union and non-union employers should pay particular attention to protected, concerted activities in managing or disciplining workers. As we recently shared, employers can expect increased enforcement activity and scrutiny from the NLRB. Ohr’s support for the extension of the Protected Standard for Concerted Activities provides the NLRB regional offices with additional ammunition to determine that an employer has committed unlawful behavior.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 95

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