Maybe, but probably not. General Counsel for the National Labor Relations Board recently released a Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy. The guidance provided in the Memorandum applies with equal force to union employers and to non-union employers, and was appropriately released near the height of the four-year national election cycle. In a year where immigration reform and other legislative initiatives, such as the Employee Free Choice Act, have commingled national labor policy with national politics to the greatest extent in recent memory, employers should remain cautiously alert to the potential for “labor politics” to creep into the workplace. General Counsel Memorandum 08-10, released on July 22, 2008, condenses thirty years of Board precedent into a few basic principles that can be applied by employers to avoid unwitting violations of the Act when policing workplace political activity and advocacy.
For employee political advocacy to constitute protected activity under the NLRA, the advocacy must fall within the “mutual aid or protection” clause of Section 7. The General Counsel Memorandum reinforces the principle that to fall within the “mutual aid or protection” clause, there must be a “direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.” Thus, the Board continues to hold that “employee appeals to legislators or governmental agencies [are] protected, so long as the substance of those appeals [are] directly related to employee working conditions.” This principle applies with equal force to distribution of political literature in the workplace.
For example, an employee appeal to a regulatory body, or the distribution of literature that suggests or encourages such an appeal, is for “mutual aid or protection” if it relates to the occupational qualifications of members of the workforce, including their citizenship, to industrial standards that affect workloads or other workplace conditions, or to any other issue that affects wages, benefits, or working conditions. In contrast, similar appeals that are “purely political” lack the direct nexus required to bring the activity with the “mutual aid or protection” clause, and remain unprotected by the NLRA. Examples of unprotected activity highlighted in the Memorandum include the distribution of literature that encourages support for a particular candidate or party without reference to a workplace-related issue.
Even when political advocacy falls within the “mutual aid or protection” clause, employees must still use lawful means of advocacy to be afforded the protections of the Act. Moreover, employers may continue to enforce lawful non-solicitation policies against political advocacy in the same manner that these policies may be used to police the distribution of union-related literature. In the rare instance where employees choose to absent themselves from the workplace to engage in political advocacy, the issue involved must be within the control of the particular employer for the employees to retain the protections of the Act. The Board continues to refuse protection to employees who engage in partial or intermittent strikes, sit-down strikes, and work slow-downs regardless of the employee’s objectives or motivation. Even where a strike for political advocacy is initially protected, “employees who fail to take reasonable precautions to protect the employer’s operations from such imminent damage as foreseeably would result from their sudden cessation of work” are not protected by the Act.
The Board’s General Counsel provided the following guidance that can be easily applied by employers to most situations involving workplace political activity and its implication of the NLRA:
- non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees’ own time and in nonwork areas is protected;
- on-duty political advocacy for or against a specific issue related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally-applied work rules; and
- 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.
In summary, political advocacy enjoys, at most, the same protection as advocacy and distribution of literature more traditionally associated with labor unions. Accordingly, it can be policed and prohibited to the same extent as union activities under a lawful non-solicitation or non-distribution policy. To qualify for even this limited protection, political advocacy must bear a direct nexus with an employment-related issue or concern. That is, the political issue must have the potential to affect a term or condition of employment.
You may view the General Counsel’s Memorandum at: www.nlrb.gov/shared_files/GC%20Memo/2008/GC%2008-10%20Guideline%20Memorandum%20Concerning%20ULP%20Charges%20Involving%20Political%20Advocacy.pdf