National Labor Relations Act Will Be More Aggressively Enforced

On March 31st, the National Labor Relations Board (NLRB) teased possible upcoming changes to National Labor Relations Act (NLRA) enforcement. That is to say, the NLRB’s Acting General Counsel, Peter Sung Ohr, proclaimed that previous boards lacked robust enforcement procedures. As a result, the NLRB did not enforce the NLRA as ardently as it should have been. In a memorandum (memo), the NLRB signaled an aggressive enforcement policy against private-sector employers, whether currently unionized or not. Overall, the memo discusses the NLRB’s desire to enforce employee rights under the NLRA. Specifically, employees’ rights to engage in “mutual aid or protection” and “inherently concerted” activities. Previously, the NLRB released guidance on National Labor Relations Act violations during the COVID-19 pandemic.

“Mutual Aid or Protection”

Firstly, the memo includes an expansive view of “mutual aid or protection” under the National Labor Relations Act. For instance, this would be in line with any speech that is commonplace in the workplace regarding current social issues. According to the NLRB, this protected speech directly correlates to employee interests. Ohr promised to “robustly enforce” NLRA provisions in this area while narrowly applying the concept of “mutual aid or protection.”

“Inherently Concerted” Activities

Finally, the NLRB wants to adopt a broad definition of what constitutes “inherently concerted” activity in terms of workplace speech. The activity must be “concerted” to maintain National Labor Relations Act protection. The conduct only needs to involve a speaker and a listener (as opposed to multiple individuals speaking) to be “concerted.” Additionally, the NLRB’s memo notes that contemplation of group action is not a required element. Ohr indicated that the General Counsel’s Office would seek a broad application of what constitutes “inherently concerted” activity. For instance, the Acting General Counsel may seek to safeguard employee rights to engage in speech related to specific topics. Examples of these topics include workplace health and safety issues and racial discrimination. Earlier iterations of the NLRB did not name those topics as protected employee rights.

Employee Takeaways

In conclusion, even though the memo does not establish new laws, it does signal possible changes to the NLRA. In the meantime, all affected employers should still operate under the NLRB’s current rules. However, employers must keep an eye on possible NLRB updates in the coming months.