Advocating for nonemployees does not qualify for protection under the National Labor Relations Act (NLRA), a three-member panel of the National Labor Relations Board (NLRB) recently determined.
Nonprofit advocacy organization Amnesty International generally has about 25 employees and 15 interns in its Washington, D.C., office. The employees relied upon the interns, who typically volunteered for a single academic semester, to perform administrative tasks and otherwise assist them.
The interns were unpaid and received no other economic compensation from Amnesty. In February 2018, a group of the interns approached employee Raed Jarrar for assistance with a petition asking Amnesty to pay them. Jarrar provided feedback, signed the petition and then encouraged other employees to sign the petition.
Amnesty had already been in discussions for more than a year about changing its internship program, with a plan to begin paying interns but shrink the program down to just three paid interns.
The interns emailed their petition to executive director Margaret Huang. Amnesty decided to accelerate its plans to change the internship program and held a meeting with the employees. Many reacted negatively to the announcement, concerned about the sharp reduction in the number of interns.
During the meeting, Huang expressed her disappointment that the employees had not availed themselves of her open-door policy to discuss the issue with her before signing a petition and conveyed her belief that the petition was adversarial and threatened litigation.
Huang later held a meeting with Jarrar, where she again described the petition as “sort of levy[ing] a threat,” confessed to feeling “very embarrassed” that the employees had not approached her and suggested it would have been “really helpful” to have had advance notice of the interns’ interest in paid internships.
“I’m not asking anybody to tell on somebody. … [I]t helps to know so that I could know, for example, and again it doesn’t have to be you,” she told Jarrar. “It could be the people who draft the petition. If you let [me] know it’s coming, if you let [me] know your intentions, what you are seeking.”
An administrative law judge (ALJ) found that Huang’s statements violated Section 8(a)(1) of the NLRA because she unlawfully instructed employees to communicate complaints to management orally before submitting them in writing, threatened employees with unspecified reprisal because they engaged in protected concerted activity, equated protected concerted activity with disloyalty, and requested that employees report to management about employees who are engaging in protected concerted activity.
But the three-member panel disagreed, reasoning that Huang could not have run afoul of the NLRA because the employees were not engaged in activity protected by Section 7 when they joined the interns’ petition.
“Activity advocating only for nonemployees is not for ‘other mutual aid or protection’ within the meaning of Section 7 and accordingly does not qualify for the Act’s protection,” the panel wrote. “The unpaid interns here did not receive or anticipate any economic compensation from [Amnesty] and therefore they did not constitute ‘employees’ under Section 2(3) of the Act.”
The panel found no merit in the ALJ’s determination that even if the interns were not employees, the employees’ support for the interns’ petition was protected because the petition affected their own terms and conditions of employment.
“Put simply, employees’ object must be to help employees—be it themselves or the employees of another employer,” the panel said.
The panel further reversed the ALJ’s conclusion that Huang coerced employees in the exercise of their right to engage in protected activity in the future. Not all displeased communications from an employer to an employee are coercive, the panel wrote, and while Huang’s statements conveyed her disappointment about how the petition transpired, there was no threat of any reprisal.
“Nothing Huang said rose to the level of conveying that she was angry, let alone that she was threatening any reprisal or accusing employees of betraying her or [Amnesty],” the panel said.
One member of the panel dissented, writing that the majority’s decision “represents another instance of the majority reaching out to wrongly narrow statutory protections for employees. … The potential lesson of today’s decision is an alarming one: employees who are covered by the Act may now risk discipline or discharge if they act together at work on behalf of coworkers who are not covered by the Act.”
To read the decision and order in Amnesty International of the USA, Inc., click here.
Why it matters: The NLRB was clear: Because the employees were advocating on behalf of nonemployees, they were not engaged in activity protected by Section 7 of the NLRA, so the employer could not have violated the statute.