NLRB Issues Guidelines Regarding Discipline for Employees Who Engage in Immigration Protests
 
October 22, 2008
 
Todd D. Steenson- Chicago

During the past several years, nationwide and local demonstrations have been organized to protest pending legislative proposals concerning immigration and employment. Many employers have been faced with employees who have left or missed work, some without permission, to attend these demonstrations. Some employees who were disciplined for leaving work to take part in these protests filed charges with the National Labor Relations Board (NLRB or Board), claiming that their discipline for leaving work to engage in immigration protests violated their right to engage in collective action for mutual aid and protection as established by the National Labor Relations Act (NLRA). And many employers have had to decide, in an uncertain legal environment, how to respond to employees who leave work to participate in such protests.

Recently, the General Counsel of the NLRB, who is responsible for determining which unfair labor practice cases the NLRB will prosecute, issued a Guideline Memorandum explaining the agency’s position regarding the right of employees to engage in immigration protests and employers’ rights to discipline employees who engage in such activities. The General Counsel concluded that although attending immigration demonstrations is protected activity under the NLRA, leaving work to do so is not. An employer may therefore discipline employees who leave work to attend such rallies, but an employer cannot punish them if they do so on their own time.

Protected Conduct

Section 7 of the NLRA gives employees the right to engage in concerted activity for “mutual aid or protection.” The NLRB and the U.S. Supreme Court have extended this Section 7 protection beyond the confines of the employment relationship to concerted political activity – they have provided protection when employees seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” But Section 7 does not protect all forms of political activity, no matter how
attenuated from the employees’ workplace interests.

Political activity is protected only when there is a direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.

The General Counsel’s Guideline Memorandum gives examples of protected conduct. Employee appeals to legislators or governmental agencies are protected, so long as the substance of those appeals is directly related to employee working conditions. So, for example, employee complaints to a hospital accreditation commission concerning staffing levels were protected as matters “intimately related to the conditions under which the employees worked.” A union’s intervention before state environmental and other regulatory permit proceedings to “force construction companies to pay their employees a living wage, including health and other benefits,” was “undisputedly protected” because it was designed to expand union job opportunities and further employee health and safety. And, employees’ appeal to a government agency with which their employer contracted to perform services can constitute protected activity. Thus, in Five Star Transportation, Inc., the Board held that school bus drivers who sent letters to the school district raising “[e]mployment-[r]elated [c]oncerns” – that the new contractor-employer would not maintain its predecessor’s working conditions – engaged in protected activity.

On the other hand, complaints to a government agency or legislators that do not involve working conditions are not protected under the “mutual aid or protection” clause. Accordingly, in Five Star Transportation, letters to the school district raising more general safety concerns on behalf of students did not constitute protected activity. Likewise, nursing employees who informed state agencies about staffing levels were protected, but those who complained about patient care quality were not. And simply distributing “purely
political tract[s]” that call for the election of particular candidates or the creation of a workers’ party, without reference to specific employment-related issues, are too attenuated from “employees’ problems and concerns qua employees” to constitute protected activity.

The General Counsel’s Guideline Memorandum concludes that under this test, employees’ participation in immigration demonstrations or immigration-related political activity is, in general, activity for mutual aid and protection protected by the NLRA. The General Counsel stated that there is a direct nexus between the immigration laws and employees’ ability to obtain lawful employment, and that the proposed legislation could directly affect employees’ job opportunities and job security. Thus, the NLRB will consider employee attendance at and support of immigration protests (by both non-immigrant and immigrant employees) to be within the scope of the “mutual aid or protection” clause and will find that discipline for such activities may violate the law.

But this conclusion does not mean that employees are privileged to leave work to attend immigration demonstrations. The General Counsel said that leaving work to attend a demonstration is equivalent to withholding services or striking. Withholding services from an employer is protected activity only when it relates to an issue the employer has the power to fix. Because an employer has no power to respond to or resolve the immigration protesters’ concerns about immigration legislation, employees cannot walk out of work to support those concerns and employers may discipline employees who leave work to engage in immigration protests. Thus, the General Counsel will not prosecute unfair labor practice charges based upon a claim that an employee was fired solely because he or she left work to attend an immigration rally, provided the employer would similarly discipline an employee who left work without permission for any other similar personal reason.

This does not mean that employers have free rein to discipline employees for immigration-related political advocacy or activities. The Guideline Memorandum sets out a number of rules for discipline relating to political activities or advocacy:

• First, employees can be disciplined for political advocacy that does not relate to the workplace or employment concerns.
• Second, non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern is protected so long as it takes place during the employees’ own time and in non-work areas, including in the workplace. Employers cannot discipline employees for the content of their political advocacy on non-working time and in non-working areas unless they can prove that the activities specifically disrupted the workplace.
• Third, on-duty political advocacy for or against a specific issue related to a specifically identified employment concern, although protected, can be restricted by lawful and neutrally-applied work rules.
• Fourth, leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules. Thus, employees who leave the workplace to attend an employment-related demonstration may be disciplined in the same manner as the employer would similarly discipline an employee who left work without permission for any other similar personal reason.

Bottom Line

The bottom line is that employees have the right to engage in political activity related to their employment as long as they do so outside of their working time. They do not have the right to leave work to engage in political activity – even if it is related to their employment – and they can be disciplined for doing so. This is, however, an evolving and difficult area of the law and it is best to seek legal advice before taking disciplinary action against an employee for engaging in political advocacy or activity.

For more information, contact:

Todd D. Steenson
312.578.6541
todd.steenson@hklaw.com
toll free: 1.888.688.8500