Federal labor law limits an employer’s right to fire an employee for “engagement.”[ing] The law also limits unions’ ability to discipline members for speaking out on union issues. But unlike some state laws, it doesn’t protect employees’ broader political activities. So the question arises: What constitutes “mutual aid or protection” for employees?
in NLRB v. SFR, Inc.The National Labor Relations Board (Commissioners Kaplan, Prouty, and Wilcox) upheld Administrative Law Judge Arthur Amchan’s decision that participation in Black Lives Matter protests was not sufficiently focused on. employee right:
Specifically, we agree with the judge that the employees’ participation in Black Lives Matter (BLM) protests has not been shown to have been for mutual aid or protection in the context of the facts of this case and current law, and therefore we deny the motion.
{While Rep. Wilcox agrees that the evidence here does not prove that the employees’ participation in protests outside the BLM was for “other mutual aid or protection” as defined in Article 7, Eastex Corp. v. NLRB (1978), the judges had worded the relevant standard too narrowly. Instead, as the Commission explained: Home Depot USA Inc. (NLRB 2024) “Employee concerted actions are protected by Section 7 of the Act so long as they meet the following conditions: of The purpose is protected. The fact that the employee’s actions may have other purposes or that those purposes may take precedence is immaterial.”
The following is an excerpt Approved Decisions (Read the full article for more facts):
Nichols and King acted in concert by attending the BLM protests together. However, in the circumstances of this case, neither of the alleged victims engaged in activity protected by Section 7 of the Act. A representative case on this issue is Eastex Corp. v. NLRB (1978). In that case, the Supreme Court confirmed or reaffirmed the proposition that Article 7 protects employees when they engage in otherwise protected concerted activity to assist employees of employers other than their own. The Court also made clear that Article 7 protections may apply to lawsuits brought against individuals or groups not seeking assistance in their capacity as employers, such as lawsuits before state legislatures to oppose “right to work” bills or before voters to elect representatives favorable to employee concerns.
However, Justice Powell also wrote in the majority opinion that “it is, of course, true that some joint activities have a less direct relationship to the employees’ interests than others. At some point, one can expect the relationship to weaken so that an activity can no longer fairly be regarded as falling within the ‘mutual aid or protection’ clause.”
BLM, at least originally, was a protest movement against police misconduct against African-Americans. It may well have morphed into a protest movement against all forms of racism, including in the workplace. But that is not the primary focus of BLM. At the BLM protest that Taylor attended, not a single word was said about racism in the workplace. The protests seemed entirely focused on police mistreatment of African-Americans, specifically the murder of George Floyd.
There is no connection between the BLM protests in this case and concerns about racial inequality at Parkside Café or any other particular employer. There is no evidence in the record that the BLM protests were focused on any particular workplace issue that is prevalent in the workplace generally, such as racial discrimination in hiring. To find that the statute protects activity that is by no stretch of the imagination unrelated to the workplace would expand the scope of the statute far beyond where it has been applied to date, and further, it is unlikely that it was ever intended to extend to such activity.
This broadening of the law’s reach would logically prohibit employers from prohibiting any kind of disruptive activity in the workplace that is at best indirectly related to the concerns of employees as employees.
I hold that Taylor, King and Nichols’ participation in the BLM rally, at least in the circumstances established by this record, materially prejudiced the interests of the discriminated against as employees and was not covered by the “mutual aid or protection clause.” Thus, even if they were fired, Defendants did not violate the law by doing so….
The administrative law judge also found that the employees were not “fired” (i.e., forced to resign because working conditions had become intolerable) and were not told they could not continue their employment if they supported Black Lives Matter.
“Although Mr. Dykes expressed his discomfort with BLM and employees’ participation in it, he did not demand or imply that they would no longer be able to work at Parkside if they continued to participate in BLM protests…. Mr. Bagwell, who typically sets and oversees employees’ work schedules, did not make ceasing support for Black Lives Matter a condition of continued employment. In fact, in three-way text message exchanges between Mr. Bagwell, Mr. Dykes, and Mr. Taylor, Mr. Bagwell wrote that he would not fire anyone. Given this ambiguity, I believe that those who were discriminated against were not given a clear and unambiguous choice between continued employment and continuing to support Black Lives Matter….
