On July 22, 2008, the National Labor Relations Board General Counsel issued a memorandum describing the framework for analyzing unfair labor practice charges stemming from the discipline of employees who engage in political activities, such as attending political demonstrations or appealing to legislators or government agencies. Generally speaking, the General Counsel discussed the criteria for determining when political advocacy falls within the "mutual aid and protection" clause and whether the advocacy is carried out by permissible means.
The "mutual aid or protection" clause in Section 7 of the National Labor Relations Act (Act) protects employees seeking to improve their lot as employees or support employees of other employers through participation in concerted activities outside of their immediate employment relationship. However, the protection from disciplinary action only applies to an employee engaging in political advocacy if a direct nexus exists between the political advocacy and a specific employment concern, and the means utilized to carry out the political advocacy are protected.
Prior to issuing discipline, an employer should initially consider whether the political advocacy meets the "direct nexus" test. Political advocacy satisfies the "direct nexus" prong if the activity is aimed at an issue directly relating to the employee's working conditions, including wages and benefits, employee drug testing, and workplace safety laws. To further illustrate, employees participating in political demonstrations protesting legislation aimed at reducing the employment of illegal immigrants are protected under the Act because the potential penalties may dissuade an employer from hiring immigrant employees. By contrast, activities that fail to relate to the employee's working conditions, such as patient care or passenger safety, are not afforded the protection of the Act.
If the activity falls within the umbrella of "mutual aid or protection," then the method utilized to carry out the advocacy should be examined. The Act protects activities occurring during non-work time and non-work hours, as long as the employer suffers no disruption in its operations or interference in its ability to maintain discipline throughout its facility. While partial strikes, sit-down strikes, and work slowdowns continue to be unprotected, absences from work in support of a political cause may or may not be protected depending upon if the employer has control over the underlying issue serving as the basis for the political advocacy.