Non-Work Political Advocacy Not Shielded By Labor Law

By Braden Campbell
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Law360 (September 15, 2020, 9:24 PM EDT) -- Workers who advocate for police reform or other political causes not directly tied to the workplace aren't protected by federal labor law, a National Labor Relations Board advisory attorney said in one of a handful of newly released guidance letters.

United Food and Commercial Workers Local 1994 did not violate the National Labor Relations Act when it fired a worker who testified in support of police reform in their capacity as a Maryland state delegate, an attorney in the NLRB's Division of Advice said in the letter, which is dated Aug. 13 but was released Monday.

The worker was not engaged in concerted activity for "mutual aid or protection" under the NLRA because their testimony "had nothing to do with [their] employment" with the union, which has police members, nor did the worker tie their advocacy "to any employment concern of any employee," the letter reads.

"Because the act does not protect employee political advocacy that has no nexus to a specifically identified employment concern, the region should dismiss the charge, absent withdrawal," the attorney said. The worker withdrew their charge, according to the NLRB docket.

The letter was one of five advice memoranda the NLRB released Monday answering novel legal questions, including two applying board case law to disputes tied to the coronavirus pandemic. The letter does not identify its subject, but the allegations match those referenced in a July report by The New York Times. Maryland State Delegate Gabriel Acevero accused Local 1994 of violating the NLRA by firing him after he introduced a bill to strip protections for police officers accused of misconduct, according to the Times' report. 

The NLRA shields workers from punishment when they engage in "concerted activities for the purpose of … mutual aid or protection." The U.S. Supreme Court has said this protection extends to workers who act "in support of employees of employers other than their own" or to "improve their lot" through non-workplace channels.

Under this precedent, the NLRB has said workers' political activity is protected "if it relates in some demonstrable way to employee concerns over wages, hours, or working conditions," the advisory attorney said in the letter. For example, the board has said a worker who testified in Congress in support of environmental safety laws that affect workers handling toxic materials was protected.

But that protection hinges on the "nexus between what is being advocated and employee terms and conditions of employment," the attorney said. Because the UFCW worker was acting "in the interest of the community at large and in furtherance of [their] own political agenda," rather than in the interest of workers, they were not protected, the attorney said.

The advice division also added to a growing trove of guidance on labor issues related to the coronavirus on Tuesday, saying two employers did not violate the NLRA when they made emergency policy changes without the permission of their workers' unions.

The NLRA generally requires employers to hash out most terms and conditions of employment with unions, but unions can cede their rights to negotiate over certain subjects as a bargaining chip.

In one case, an International Brotherhood of Electrical Workers unit accused Comcast Cable of making an illegal unilateral change when it told installers to keep company truckers in their home garages in April. But the change was within the company's power under a so-called management's rights clause in its contract with the union, and it otherwise fulfilled its obligations to bargain over the change, the advice division said.

In the other case, the Michigan Nurses Association accused hospital network Mercy Health of adopting several policies without the union's OK. Though the parties' contract did not empower the hospital to alter these policies, employers have leeway to forego bargaining over pandemic-related changes as long as they circle back with the union once the dust settles, the advice division said.

"Here, the initial implementation of the policies and benefits ... was permissible without first notifying the union either because the changes were legally mandated ... or reasonably related to the COVID-19 emergency," the advice division said.

A fourth letter directed the board's Fort Worth office to dismiss a charge accusing home services platform Modernize of firing a computer programmer for discussing pay with colleagues. The worker signed a separation agreement blocking him from bringing labor charges, and the NLRB has recently questioned precedent holding that employers violate the NLRA by forbidding workers from discussing wages, the advice division said.

In another letter from 2017, then-NLRB Associate General Counsel Jayme Sophir told the board's Fort Worth office to pursue a charge accusing engine repair company Dallas Airmotive of attempting to ditch a collective bargaining agreement with the International Association of Machinists after transferring some union-represented workers to a new facility. Though the union waived some of its rights for a limited period of time to accommodate the restructuring, it did not give the company the power to skirt the agreement, Sophir said.

--Additional reporting by Anne Cullen. Editing by Haylee Pearl.

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