The General Counsel of the National Labor Relations Board (NLRB) on July 22, 2008, issued GC08-10, Guideline Memorandum “Concerning Unfair Labor Practice Charges Involving Political Advocacy”. The General Counsel’s guideline contains instructions for processing unfair labor practice charges involving political advocacy activities by employees and provides guidance to employers on when disciplinary actions for these activities may be appropriate. The guideline resulted from a series of unfair labor practice charges filed against employers in late 2006 involving discipline of employees who left work or were absent without permission to participate in demonstrations protesting proposed changes in immigration regulations. The major issue for employers was whether employees who participated in those demonstrations were engaged in legally protected activity. The guideline suggests that such absenteeism can be subject to disciplinary action under consistently enforced attendance policies.
The General Counsel of the NLRB serves as the final authority for the investigation of unfair labor practice charges, issuance of complaints and prosecution of complaints. While not binding, the guideline provides helpful insights on how the NLRB will address these issues.
Section 7 of the National Labor Relations Act (NLRA) protects an employee’s right to engage in concerted activity for “mutual aid or protection.” The NLRB has traditionally held that political advocacy is protected by Section 7 where the subject of the advocacy has a direct relationship to the employee’s working conditions. In numerous cases, the NLRB has found that employee appeals to legislative bodies or governmental agencies were protected where the substance of those appeals directly related to employee working conditions. Examples of work-related political advocacy were protests over mandatory employee drug testing, hospital staffing levels and, in one case, the issuance of visas for foreign workers where the protest was based upon a belief that the influx of foreign employees would threaten job security. Conversely, complaints to governmental bodies that do not involve working conditions are not protected under the NLRA. For example, nursing employees who complained about quality of patient care were not viewed as being engaged in protected activity for purposes of Section 7.
The guideline recites the general rule that employee participation in rallies and demonstrations to protest changes in immigration laws is sufficiently related to employment to enjoy protection under the NLRA. The means by which that participation is manifested, however, must also be reasonable. The guideline emphasizes that political advocacy of employment-related matters during nonwork time, in nonwork areas, is protected and may not be the subject of employer discipline. Discriminatory enforcement of otherwise valid work rules based upon the content of an employee’s political expression also violates the NLRA. Leaving work to participate in demonstrations such as those carried out in 2006 present different issues that the guideline specifically addresses.
The NLRA generally protects the rights of employees to strike and prohibits an employer from discharging or disciplining employees who leave work without permission for the purpose of obtaining improvements in their work conditions. The new guideline emphasizes that employees who leave work in support of a political cause are in a different situation. A walkout under those circumstances is generally unprotected because economic pressure is being exerted on an employer with no control over the outcome of the dispute. The guideline concludes that “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.” Simply put, where employers consistently enforce rules against, or impose disciplinary action for, unexcused absences from work for any reason, those rules may similarly be applied to employees who leave work to engage in political advocacy.
In summary, the guideline concludes that:
(a) nondisruptive political advocacy that is related to a specifically identified employment concern that takes place during the employee’s own time and in nonwork areas is protected;
(b) on-duty political advocacy related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and
(c) leaving or stopping work to engage in political advocacy for or against a specifically identified employment concern may also be subject to restriction imposed by lawful and neutrally applied work rules.
With respect to leaving or stopping work, the key element is consistent enforcement of the attendance rules, as well as consistent application of the disciplinary penalties for unexcused absences. As long as absences to attend political rallies or demonstrations during scheduled work hours are treated in the same manner as any other unexcused absence, the employee’s conduct should be regarded as unprotected by the NLRB and properly subject to disciplinary action.