The National Labor Relations Act (“NLRA”) provides employees with the rights to organize or join a union, to engage in collective bargaining, and to undertake other concerted activities for mutual aid and protection. Specifically, Section 7 of the NLRA provides that “Employees shall have the right to self-organization, 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 . . . .” If an employer interferes with or otherwise restrains an employee in the exercise of those rights, it potentially has committed an unfair labor practice under the NLRA. The “National Day Without Immigrants” protests pose a fascinating question regarding this area of law.
Employee protests could be construed as political activity and/or protected concerted activity that relates to the workplace. For employee political advocacy to constitute protected activity under the NLRA, the advocacy must fall within the “mutual aid or protection” clause of Section 7. The General Counsel Memorandum reinforces the principle that to fall within the “mutual aid or protection” clause, there must be a “direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.” Thus, the National Labor Board continues to hold that “employee appeals to legislators or governmental agencies [are] protected, so long as the substance of those appeals [are] directly related to employee working conditions.” This principle applies with equal force to distribution of political literature in the workplace.
National Day Without Immigrants
Here, immigrant employees, and even non-immigrant employees, could reasonably believe that President Trump’s immigration agenda could impact their interests as employees, and thus, their attendance at and support of “National Day Without Immigrants” may fall within the scope of the “mutual aid or protection” clause. An employer generally cannot discharge or discipline employees for leaving work without permission if their walkout is for the purpose of obtaining some improvement in their working conditions from their employer, unless it is a party to a collective bargaining agreement that provides otherwise. The “National Day without Immigrants” demonstrations present a unique question because, though their subject is related to employee working conditions, the immediate employer likely lacks the ability to address the underlying dispute because the target of the protest is Trump’s policy.
As employees protest, it is important to consult with counsel and exercise caution.