Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy

OFFICE OF THE GENERAL COUNSEL

Division of Operations-Management

MEMORANDUM GC 08-10

DATE:

July 22, 2008

TO:

All Regional Directors, Officers-in-Charge

and Resident Officers

FROM:

Ronald Meisburg, General Counsel

SUBJECT:

Guideline Memorandum Concerning Unfair Labor

Practice Charges Involving Political Advocacy

In late 2006, we considered a series of charges

involving discipline of employees who had participated in

nationwide and local demonstrations organized to protest

pending legislative proposals that would impose greater

restrictions and penalties on immigrant employees and their

employers. Consideration of those cases prompted a review

of agency law and policy in political advocacy cases. This

Guideline Memorandum describes this review and the

framework we will use to consider these issues when they

arise in the future.

In Eastex, Inc. v. NLRB, the Supreme Court endorsed

the Board's view that employees are protected under the

"mutual aid or protection" clause of Section 7 when they

seek to "improve their lot as employees through channels

outside the immediate employee-employer relationship."1

At

the same time, the Court cautioned against extending this

principle so far that nearly all forms of political

activity –- no matter how attenuated from employees'

workplace interests –- might be deemed protected.2

The

important question of where, and on what basis, to draw the

line between protected concerted activity and unprotected

political activity can be a difficult one.

1 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).

2 Id. at 567-568 ("at some point the relationship [between

employees' concerted activity and their interest as

employees] becomes so attenuated that an activity cannot

fairly be deemed to come within the 'mutual aid or

protection' clause").

line between protected concerted activity and unprotected

political activity can be a difficult one.

1 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).

2 Id. at 567-568 ("at some point the relationship [between

employees' concerted activity and their interest as

employees] becomes so attenuated that an activity cannot

fairly be deemed to come within the 'mutual aid or

protection' clause").

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As a matter of enforcement policy under the Act, we do

not want to equate political disputes with labor disputes,

or promote the use of strikes and similar activity for

resolving what are essentially political questions. To do

so would "endorse the expansion of labor disputes in a way

that is contrary to our national policy favoring the

limitation of labor disputes to the primary parties."3

At

the same time, we are bound to follow Supreme Court and

Board precedent recognizing that certain employee political

advocacy is protected activity under the Act. The purpose

of this memorandum is to set out a framework for

harmonizing our enforcement policy with that precedent, and

thereby provide guidance to employees, unions, and

employers in this important and developing area of the law.

Part I of this memorandum examines the Board

jurisprudence determining when employee political advocacy

falls within the "mutual aid or protection" clause of

Section 7.4

The test that the Board has set forth,

consistent with Eastex, is whether there is a direct nexus

between employment-related concerns and the specific issues

that are the subject of the advocacy. To illustrate how

this test should be applied, we will examine recent

advocacy regarding immigration law reforms.

Part II contains a discussion of whether, assuming

that the object of the political advocacy at issue is

within the "mutual aid or protection" clause, that advocacy

is protected because of the specific means employed

and the specific issues

that are the subject of the advocacy. To illustrate how

this test should be applied, we will examine recent

advocacy regarding immigration law reforms.

Part II contains a discussion of whether, assuming

that the object of the political advocacy at issue is

within the "mutual aid or protection" clause, that advocacy

is protected because of the specific means employed. We

will review the various activities in which employees might

typically engage and consider when the employees' activity

is protected.

Finally, Part III contains instructions for processing

charges involving political advocacy. Regions will submit

all such cases to the Division of Advice with a

recommendation as to whether a complaint is warranted under

the analytical framework and discussion set forth in this

Memorandum.

I.

Determining When Political Advocacy Falls Within the

"Mutual Aid or Protection" Clause of Section 7

A.

Established Board Law

3 Abbott Northwestern Hospital, 343 NLRB 498, 508 (2004)

(Member Meisburg, concurring in part) (footnote omitted).

4 This memorandum does not address the issue of concert and

assumes that the political activities discussed herein are

concerted activities.

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Section 7 of the Act protects, inter alia, employee

rights to engage in concerted activity for "mutual aid or

protection."5

The Board has long extended this Section 7

protection beyond the confines of the employment

relationship to concerted political advocacy when the

subject of that advocacy has a direct nexus to employee

working conditions.

Thus, over thirty years ago, the Board held that a

Kaiser Engineers employee who wrote to members of Congress

on behalf of his fellow employees, opposing a competitor

company's efforts to obtain resident visas for foreign

engineers, was engaged in protected activity under Section

7.6

The letter was motivated by a concern that an influx

of foreign engineers would threaten U.S

king conditions.

Thus, over thirty years ago, the Board held that a

Kaiser Engineers employee who wrote to members of Congress

on behalf of his fellow employees, opposing a competitor

company's efforts to obtain resident visas for foreign

engineers, was engaged in protected activity under Section

7.6

The letter was motivated by a concern that an influx

of foreign engineers would threaten U.S. engineers' job

security and therefore was for the "mutual aid or

protection" of the Kaiser engineers and their "fellow

engineers in the profession."7

The Supreme Court upheld this approach in Eastex,8

concluding that the "mutual aid or protection" clause

protects employees when they engage in concerted activities

"in support of employees of employers other than their own"

or seek to "improve their lot as employees through channels

outside the immediate employee-employer relationship."9

In numerous subsequent cases, the Board has found that

employee appeals to legislators or governmental agencies

were protected, so long as the substance of those appeals

was directly related to employee working conditions.

5 29 U.S.C. § 157.

6 Kaiser Engineers, 213 NLRB 752, 755 (1974), enfd. 538 F.2d

1379 (9th Cir. 1976).

7 Ibid. (letter writer's forced resignation violated

Sections 8(a)(3) and (1)).

8 See Eastex, Inc. v. NLRB, 437 U.S. at 566, n.16, citing,

inter alia, Kaiser Engineers, 213 NLRB 752 (1974).

9 Id. at 564-565 (upholding Section 7 protection for

distribution of literature urging employees to vote for

candidates supporting federal minimum wage increase and to

lobby legislators to oppose incorporating right-to-work

statute into state constitution).

Sections 8(a)(3) and (1)).

8 See Eastex, Inc. v. NLRB, 437 U.S. at 566, n.16, citing,

inter alia, Kaiser Engineers, 213 NLRB 752 (1974).

9 Id. at 564-565 (upholding Section 7 protection for

distribution of literature urging employees to vote for

candidates supporting federal minimum wage increase and to

lobby legislators to oppose incorporating right-to-work

statute into state constitution).

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A common situation involves employee complaints or

testimony to regulatory bodies. In one such case, charging

parties' letters to the Coast Guard requesting that their

employer, a casino boat operator, be required to hire only

engineers with unlimited licenses, in an effort to insure a

wage floor and their safety, were protected as "an attempt

to better their terms and conditions of employment."10

Similarly, employee complaints to a hospital accreditation

commission concerning staffing levels and the number of

patients assigned to each staff member were also protected

as matters "intimately related to the conditions under

which the employees worked."11

And, a union's intervention

before state environmental and other regulatory permit

proceedings to "'force construction companies to pay their

employees a living wage, including health and other

benefits,'" was "undisputedly protected" because it was

designed to expand union job opportunities and further

employee health and safety.12

10 Riverboat Services of Indiana, Inc., 345 NLRB 1286, 1294,

1297 (2005) (employer violated Section 8(a)(1) by

discharging letter writers).

11 Misericordia Hospital Medical Center, 246 NLRB 351, 356

employees a living wage, including health and other

benefits,'" was "undisputedly protected" because it was

designed to expand union job opportunities and further

employee health and safety.12

10 Riverboat Services of Indiana, Inc., 345 NLRB 1286, 1294,

1297 (2005) (employer violated Section 8(a)(1) by

discharging letter writers).

11 Misericordia Hospital Medical Center, 246 NLRB 351, 356

(1979), enfd. 623 F.2d 808 (2d Cir. 1980) (employer

violated Section 8(a)(1) by discharging one employee who

lodged such complaints and by threatening the others).

Accord Frances House, Inc., 322 NLRB 516, 522-523 (1996)

(employer violated Section 8(a)(1) by interrogating

employees and threatening reprisals for writing letter to

state department of health regarding training,

inappropriate assignment of work, and documentation

falsification required in the course of their work duties,

since employees were "concerned about their own conditions

of employment").

12 Petrochem Insulation, Inc., 330 NLRB 47, 49 (1999)

(citation omitted), enfd. 240 F.3d 26 (D.C. Cir.), cert.

denied 534 U.S. 992 (2001) (employer violated Section

8(a)(1) by filing baseless, retaliatory lawsuit to enjoin

union's activity). See also Tradesmen International, Inc.,

332 NLRB 1158, 1159-1160 (2000), enf. denied 275 F.3d 1137

(D.C. Cir. 2002) (union organizer's testimony to municipal

board that nonunion contractor was subject to bonding

requirement was protected, because union sought to level

the field between union and nonunion contractors and

therefore "there was a nexus" between the testimony and the

job opportunities of unionized employees). The D.C.

Circuit denied enforcement, finding insufficient evidence

of a nexus to employee-related matters. 275 F.3d at 1142.

board that nonunion contractor was subject to bonding

requirement was protected, because union sought to level

the field between union and nonunion contractors and

therefore "there was a nexus" between the testimony and the

job opportunities of unionized employees). The D.C.

Circuit denied enforcement, finding insufficient evidence

of a nexus to employee-related matters. 275 F.3d at 1142.

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In some instances, the employees’ political advocacy

takes the form of an appeal to the governmental agency with

which their employer has contracted to perform services.

For example, in Five Star Transportation, Inc., the Board

held that school bus drivers who sent letters to the school

district, raising "[e]mployment-[r]elated [c]oncerns" that

the new contractor-employer would not maintain its

predecessor's working conditions, engaged in protected

activity.13

As already noted, the Board has also found employee

appeals to legislators protected under the "mutual aid or

protection" clause.14

In Motorola Inc., an employer

prohibited the distribution of literature containing

suggested messages to the city council supporting a

proposal to ban mandatory drug testing.15

The Board found

that the literature was "directly related" to working

conditions; therefore, a ban on its distribution anytime

and anywhere on the employer's property violated Section

8(a)(1).16

Similarly, in Union Carbide Corp., the employer

violated Section 8(a)(1) by barring the circulation of a

petition calling upon Congress and the President to

investigate Union Carbide's use of government funds for

anti-union activities.17

And in GHR Energy Corp., the

13 Five Star Transportation, Inc., 349 NLRB No. 8, slip op.

at 6 (2007), enfd. 522 F.3d 46 (1st Cir. 2008). See also

North Carolina License Plate Agency # 18, 346 NLRB 293, n.4

ted Section 8(a)(1) by barring the circulation of a

petition calling upon Congress and the President to

investigate Union Carbide's use of government funds for

anti-union activities.17

And in GHR Energy Corp., the

13 Five Star Transportation, Inc., 349 NLRB No. 8, slip op.

at 6 (2007), enfd. 522 F.3d 46 (1st Cir. 2008). See also

North Carolina License Plate Agency # 18, 346 NLRB 293, n.4

(2006), enfd. 243 Fed. Appx. 771 (4th Cir. 2007) (employees

engaged in protected activity when they threatened to file

a complaint about wages, bonuses, and unequal treatment

with the DMV, with whom their employer had a contract,

because, inter alia, the subject matter of the complaint

was "directly related to the employees' working

conditions").

14 See Kaiser Engineers, 213 NLRB at 755.

15 Motorola, Inc., 305 NLRB 580, n.1 (1991), enf. denied in

pert. part 991 F.2d 278 (5th Cir. 1993).

16 Ibid. The Fifth Circuit denied enforcement on the

grounds that employees involved were acting as members of

an outside political organization. 991 F.2d at 285. This

approach is questionable, as the Court focused on the

status of the groups involved rather than the substance of

the advocacy.

17 Union Carbide Corp.-Nuclear Division, 259 NLRB 974, 977

(1981), enfd. in pert. part 714 F.2d 657 (6th Cir. 1983)

(petition was "directly related to employee working

conditions as affected by their right to organize").

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employer violated Section 8(a)(1) by threatening to sue an

employee based upon his testimony before a U.S. Senate

committee and state environmental agency concerning

environmental safety laws.18

In contrast, complaints to governmental bodies that do

not involve working conditions are not protected under the

"mutual aid or protection" clause

ons as affected by their right to organize").

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employer violated Section 8(a)(1) by threatening to sue an

employee based upon his testimony before a U.S. Senate

committee and state environmental agency concerning

environmental safety laws.18

In contrast, complaints to governmental bodies that do

not involve working conditions are not protected under the

"mutual aid or protection" clause. Accordingly, while the

school bus drivers in Five Star Transportation who raised

concerns about the maintenance of working conditions did

engage in protected activity, other drivers who sent

letters to the school district raising more general safety

concerns on behalf of students did not.19

Likewise,

nursing employees who informed state agencies about

staffing levels were protected,20 but those who complained

about patient care quality were not.21

In the same vein, distribution of "purely political

tract[s]" that call for the election of a particular slate

of candidates without reference to any particular

employment-related issues22 or advocate the creation of a

workers' party are too attenuated from "employees' problems

and concerns qua employees" to constitute activity for

"mutual aid or protection."23

These cases generally articulate a test for

determining when political advocacy falls within the

"mutual aid or protection" clause: the Board looks to

18 GHR Energy Corp., 294 NLRB 1011, 1014 (1989), enfd. mem.

924 F.2d 1055 (5th Cir. 1991) (the relevant environmental

laws had a "direct impact on the working conditions of

employees handling toxic materials").

19 349 NLRB No. 8, slip. op at 3.

20 Misericordia Hospital Medical Center, 246 NLRB at 356.

21 E.g., Waters of Orchard Park, 341 NLRB 642, 643-644

ction" clause: the Board looks to

18 GHR Energy Corp., 294 NLRB 1011, 1014 (1989), enfd. mem.

924 F.2d 1055 (5th Cir. 1991) (the relevant environmental

laws had a "direct impact on the working conditions of

employees handling toxic materials").

19 349 NLRB No. 8, slip. op at 3.

20 Misericordia Hospital Medical Center, 246 NLRB at 356.

21 E.g., Waters of Orchard Park, 341 NLRB 642, 643-644

(2004) (telephone call to state health department patient

care hotline); Autumn Manor, 268 NLRB 239, 244 (1983)

(testimony at state health department relicensing hearing).

22 Firestone Steel Products Co., 244 NLRB 826, 827 (1979),

enfd. 645 F.2d 1151 (D.C. Cir. 1981) (ban on distribution

did not violate Section 8(a)(1) where leaflets bore no

relation to employee problems and concerns as employees).

23 Ford Motor Co., 221 NLRB 663, 666 (1975), enfd. mem. 546

F.2d 418 (3d 1976).

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whether there is a direct nexus between the specific issue

that is the subject of the advocacy and a specifically

identified employment concern of the participating

employees.24

This is the test that we will apply to

determine when employee political advocacy falls within the

"mutual aid or protection" clause.

B.

Application to Current Political Advocacy

Concerns

In the immigration demonstration cases that engendered

this Guideline Memorandum, we assumed, and therefore did

not decide, that employee participation in the

demonstrations was protected by the "mutual aid or

protection" clause of Section 7.25

Although it was not necessary to resolve the issue in

those cases, it is clear from the analytical framework set

forth above that participation in such demonstrations did

in fact fall within the scope of the "mutual aid or

protection" clause

and therefore did

not decide, that employee participation in the

demonstrations was protected by the "mutual aid or

protection" clause of Section 7.25

Although it was not necessary to resolve the issue in

those cases, it is clear from the analytical framework set

forth above that participation in such demonstrations did

in fact fall within the scope of the "mutual aid or

protection" clause. These demonstrations were in protest,

inter alia, of proposed legislation that would require

prospective employees to obtain a variety of clearances

before they could work in this country and would mandate

that prospective employers verify each employee's paperwork

or risk steep penalties.26

Over a period of several months, thousands of

employees across the country, many of them immigrants, took

time off from work to attend rallies and, in many

instances, to also demonstrate through their absence from

work the role of immigrants in the workforce. These

24 Five Star Transportation, Inc., 349 NLRB No. 8, slip op.

at 6.

25 See, e.g., Applebee's Neighborhood Bar & Grill, Case 30-

CA-17444, Advice Memorandum dated Oct. 17, 2006 (charge

dismissed because employees walked off the job without

permission); Reliable Maintenance, Case 18-CA-18119, Advice

Memorandum dated Oct. 31, 2006 (employee violated neutral

attendance policy); La Veranda, Case 4-CA-34718, Advice

Memorandum dated Nov. 15, 2006 (employees walked off the

job without permission); CALMAX, Inc. d/b/a Chevy's, Case

32-CA-22651, Advice Memorandum dated Nov. 30, 2006

(employees violated no-call/no-show rules); Fire Fab, Inc.,

Case 32-CA-22668, Advice Memorandum dated Dec. 4, 2006

(layoff in response to employer's economic condition, not

political demonstration).

26 Ibid.

4-CA-34718, Advice

Memorandum dated Nov. 15, 2006 (employees walked off the

job without permission); CALMAX, Inc. d/b/a Chevy's, Case

32-CA-22651, Advice Memorandum dated Nov. 30, 2006

(employees violated no-call/no-show rules); Fire Fab, Inc.,

Case 32-CA-22668, Advice Memorandum dated Dec. 4, 2006

(layoff in response to employer's economic condition, not

political demonstration).

26 Ibid.

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demonstrations focused upon pending legislation that both

supporters and detractors agreed were designed to eliminate

the employment of illegal immigrants. Moreover, many

observers predicted that the potential penalties would

cause employers to forgo hiring even lawful immigrants in

order to avoid inadvertent violations.27

Protesting

employees therefore were concerned by predictions that

employers would decline to hire immigrant employees

altogether rather than risk violating the proposed law. In

this manner, the proposed legislation could directly affect

their job opportunities and job security. This is the same

type of concern that was the focus of the protected

employee political advocacy in Kaiser Engineers.28

In sum, immigrant employees and even non-immigrant

employees could reasonably believe that the bill could

impact their interests as employees.29

For these reasons,

employee attendance at and support of these demonstrations

in our view was within the scope of the "mutual aid or

protection" clause.30

II.

Determining When Political Advocacy Within the

"Mutual Aid or Protection" Clause Is Protected in

Light of the Means Employed

Once we have determined that a particular political

advocacy falls within the "mutual aid or protection"

clause, we must then ascertain whether the means employed

to carry out that advocacy is protected

s within the scope of the "mutual aid or

protection" clause.30

II.

Determining When Political Advocacy Within the

"Mutual Aid or Protection" Clause Is Protected in

Light of the Means Employed

Once we have determined that a particular political

advocacy falls within the "mutual aid or protection"

clause, we must then ascertain whether the means employed

to carry out that advocacy is protected. For instance, it

is well established that political advocacy of employment-

related matters that is engaged in during nonwork time in

27 See, e.g., Ted O'Callahan, Small-Business Owners Lend

Support at Immigration Rallies, (April 10, 2006),

http://www.inc.com/news/articles/200604/immigration.html.

28 213 NLRB at 755.

29 Non-immigrant employees who "make cause with" a fellow

immigrant worker over "his separate grievance" are

protected under the "mutual aid or protection clause," even

if their own interests are not implicated. See NLRB v.

Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503,

505 (2d Cir. 1942).

30 This observation does nothing which would change the

result in any of those previous cases, since we assumed

without deciding in each of them that the activity was

protected. As discussed below, however, that protection

could be lost depending on the means taken by the employees

to engage in such activity.

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nonwork areas typically may not be the subject of employer

discipline absent disruption of work operations31 or

interference with the "right of employers to maintain

discipline in their establishments."32

It is also well

established that discriminatory enforcement of facially

valid work rules or past practices, based upon the content

of protected conduct, also is violative of the Act.33

The

immigration demonstrations, however, involved a different

problem -- leaving or absenting oneself from work to attend

a political demonstration

employers to maintain

discipline in their establishments."32

It is also well

established that discriminatory enforcement of facially

valid work rules or past practices, based upon the content

of protected conduct, also is violative of the Act.33

The

immigration demonstrations, however, involved a different

problem -- leaving or absenting oneself from work to attend

a political demonstration. Demonstrations like these

present a different question because, though their subject

is related to employee working conditions, the immediate

employer may lack the ability to address the underlying

grievance. The question then is whether to treat these

absences as strikes under the NLRA.

In Erie Resistor, the Supreme Court examined the

legislative history of the Wagner Act's "repeated

solicitude for the right to strike," and found that this

"solicitude" rested upon the view that the strike "is an

economic weapon which in great measure implements and

supports the principles of the collective bargaining

system."34

Thus, the strike is a "'lawful instrument'" in

the "'economic struggle ... between employer and employees

as to the share or division between them of the joint

product of labor and capital.'"35

For this reason, an

31 See, e.g., Eastex, Inc. v. NLRB, 437 U.S. at 572-576;

Motorola Inc., 305 NLRB at 580, n.1; Union Carbide Corp.,

259 NLRB at 977. Cf. ANG Newspapers, 343 NLRB 564, 565

(2004) (newspaper's legitimate interest in protecting its

credibility against the appearance of conflicts of interest

justified the minimal restraint posed by the admonishment

of a reporter who, while off-duty, attended City Council

meeting to lobby for support of the union).

32 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798

Corp.,

259 NLRB at 977. Cf. ANG Newspapers, 343 NLRB 564, 565

(2004) (newspaper's legitimate interest in protecting its

credibility against the appearance of conflicts of interest

justified the minimal restraint posed by the admonishment

of a reporter who, while off-duty, attended City Council

meeting to lobby for support of the union).

32 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798

(1945).

33 See, e.g., Treanor Moving & Storage Co., 311 NLRB 371,

371-372 (1993) (discriminatory enforcement of attendance

policy); Hialeah Hospital, 343 NLRB 391, 392 (2004) (strict

enforcement of a previously unenforced rule requiring

employees to leave the premises after clocking out).

34 NLRB v. Erie Resistor Corp., 373 U.S. 221, 233-234

(1963).

35 Id. at 234 (citing American Steel Foundries v. Tri-City

Council, 257 U.S. 184, 209 (1921); Staff Rep. of S. Comm.

on Education and Labor, 74th Cong., 1st Sess., Comparison of

S. 2926 (73d Cong.) and S. 1958 (74th Cong.) 20, reprinted

- 10 -

employer generally cannot discharge or discipline employees

who leave work without permission if their walkout is for

the purpose of obtaining some improvement in their working

conditions from their employer.36

However, when employees leave work in support of a

political cause, either to mobilize public sentiment or to

urge governmental action (in either case a matter outside

their employer's control), they are not withholding their

services as an economic weapon in the employment

relationship. It is primarily because the employees'

underlying grievance is not usually one which their

employer can address that the employees' conduct, while

resembling a strike, is distinctly different from the

typical strike specifically protected under Section 13.

Indeed, in Eastex the Court in dicta suggested that

economic pressure in support of a political dispute may not

be protected when it is exerted on an employer with no

control over the outcome of that dispute.37

We agree with

that principle

address that the employees' conduct, while

resembling a strike, is distinctly different from the

typical strike specifically protected under Section 13.

Indeed, in Eastex the Court in dicta suggested that

economic pressure in support of a political dispute may not

be protected when it is exerted on an employer with no

control over the outcome of that dispute.37

We agree with

that principle.

The principle that employees' concerted economic

activity is protected only if directed at an employer who

has control over the subject matter of the dispute is fully

consistent with the analysis applied in secondary boycott

cases. In those cases, employers are shielded from

economic coercion in controversies that they have no right

to control, even if that economic coercion is exerted by

in 1 Legislative History of the National Labor Relations

Act, 1935, at 1344 (1959)).

36 NLRB v. Washington Aluminum Co., 370 U.S. 9, 15-17

(1962). See also, e.g., Accurate Wire Harness, 335 NLRB

1096, 1110 (2001), enfd. 86 Fed. Appx. 815 (6th Cir. 2003)

(protesting failure to receive wage increase, evaluations,

an up-to-date manual, policies regarding medical leave, and

meeting with management); Vemco, Inc., 314 NLRB 1235, 1241

(1994), enf. denied 79 F.3d 526 (6th Cir. 1996) (protesting

potentially hazardous or at least inaccessible assembly

area).

37 See Eastex, Inc. v. NLRB, 437 U.S. at 568, n.18 ("'The

argument that the employer's lack of interest or control

affords a legitimate basis for holding that a subject does

not come within "mutual aid or protection" is unconvincing.

The argument that economic pressure should be unprotected

in such cases is more convincing.'") (quoting Julius G.

Getman, The Protection of Economic Pressure by Section 7 of

the National Labor Relations Act, 115 U. Pa. L. Rev. 1195,

1221 (1967)).

ack of interest or control

affords a legitimate basis for holding that a subject does

not come within "mutual aid or protection" is unconvincing.

The argument that economic pressure should be unprotected

in such cases is more convincing.'") (quoting Julius G.

Getman, The Protection of Economic Pressure by Section 7 of

the National Labor Relations Act, 115 U. Pa. L. Rev. 1195,

1221 (1967)).

- 11 -

their own employees.38

Similarly, the Board has held that

employers who refuse to hire individuals engaged in an

economic strike against another employer violate Section

8(a)(3), because "[t]o hold otherwise would endorse the

expansion of labor disputes and the accompanying use of

economic weapons in an unprecedented manner."39

Since

misdirected economic coercion is unlawful under Sections

8(a)(3) and 8(b)(4)(B), arguably, similarly misdirected

economic coercion in the context of political advocacy may

not be protected under Section 7.40

38 NLRB v. Enterprise Association of Steam Pipefitters Local

638, 429 U.S. 507, 525-526, 529-530 (1977) (subcontractor's

employees refused to install climate-control units in order

to put pressure on general contractor and to claim work

that the immediate subcontractor employer had no authority

to award); Elevator Constructors Local 91 (Otis Elevator

Co.), 345 NLRB 925, n.4, 928-929 (2005) (employees refused

to work for subcontractor employer where disputed

demolition work had already been performed by nonunion

subcontractor at general contractor's direction).

39 Abbott Northwestern Hospital, 343 NLRB at 502 (Abbott

Northwestern and other hospital employers unlawfully

refused to employ striking Fairview Hospital nurses, in

order to influence outcome of bargaining dispute between

the nurses and Fairview).

40 The law regarding sympathy strikes is not to the

contrary

already been performed by nonunion

subcontractor at general contractor's direction).

39 Abbott Northwestern Hospital, 343 NLRB at 502 (Abbott

Northwestern and other hospital employers unlawfully

refused to employ striking Fairview Hospital nurses, in

order to influence outcome of bargaining dispute between

the nurses and Fairview).

40 The law regarding sympathy strikes is not to the

contrary. The proviso to Section 8(b)(4) expressly protects

sympathy strikers, and that statutory language and the

legislative history of the Taft-Hartley Act reflect the

fact that "[r]efusals to cross picket lines have long been

considered an integral part of primary strike activity."

Getman, supra note 37, at 1228. An employer may

permanently replace but may not discharge sympathy

strikers. Torrington Construction Co., 235 NLRB 1540, 1541

(1978) (the right to refrain from crossing a picket line is

protected, but the employer has the right to replace

sympathy strikers for the sole purpose of continuing

business operations). Note though that "[c]ommon to all of

the decisions in the courts of appeals [on the rights of

sympathy strikers] ... [is] a recognition that the remedy

of discharging an employee who had refused to cross a

stranger picket line might be justified where strong,

legitimate business interests were present, where the

employee's § 7 interest in not crossing the picket line

could not be accommodated without impairing those employer

interests, and where it was clear that the decision was not

motivated by anti-union animus." Business Services by

Manpower, Inc. v. NLRB, 784 F.2d 442, 451 (2d Cir. 1986).

tranger picket line might be justified where strong,

legitimate business interests were present, where the

employee's § 7 interest in not crossing the picket line

could not be accommodated without impairing those employer

interests, and where it was clear that the decision was not

motivated by anti-union animus." Business Services by

Manpower, Inc. v. NLRB, 784 F.2d 442, 451 (2d Cir. 1986).

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It is hardly unprecedented to find that conduct with a

protected object may nonetheless be unprotected because of

the means employed. An Administrative Law Judge ruled, in

a decision adopted by the Board, that employees who left

work early to attend a union meeting did not engage in a

"strike, withholding of work, or other permissible form of

protest," even though "[t]here is no question that

attending a union meeting is protected activity under the

Act."41

Similarly, partial or intermittent strikes,42 sit-

down strikes,43 and work slowdowns44 are unprotected

regardless of the employees' objectives. As the Board long

ago held, "the inherent character of the method used sets

th[ese] strike[s] apart from the concept of protected union

activity envisaged by the Act."45

Moreover, the right to strike "is not absolute"46 or

"without limitation."47

The Board has refused protection

to striking employees who "fail[] to take reasonable

precautions to protect the employer's operations from such

imminent damage as foreseeably would result from their

41 Quantum Electric, Inc., 341 NLRB 1270, 1279 (2004)

(employer lawfully disciplined employees who left work

without permission to attend union meeting). See also

Specialized Distribution Management, 318 NLRB 158, 160

(1995) (same); Crown Coach Corp., 155 NLRB 625, 636 (1965)

(employer lawfully terminated employees who did not show

for work in order to attend union meeting).

42 See, e.g., Embossing Printers, 268 NLRB 710, 722-723

1279 (2004)

(employer lawfully disciplined employees who left work

without permission to attend union meeting). See also

Specialized Distribution Management, 318 NLRB 158, 160

(1995) (same); Crown Coach Corp., 155 NLRB 625, 636 (1965)

(employer lawfully terminated employees who did not show

for work in order to attend union meeting).

42 See, e.g., Embossing Printers, 268 NLRB 710, 722-723

(1984), enfd. mem. 742 F.2d 1456 (6th Cir. 1984) ("[t]hough

the objective was lawful, the method was not protected").

43 See, e.g., Peck, Inc., 226 NLRB 1174, n.1, 1179 (1976)

(sit-down strike in protest of employer's refusal to excuse

workers early during storm).

44 See, e.g., Philips Industries, 295 NLRB 717, 732 (1989)

(slowdown on production line in protest of change in

production standards).

45 Pacific Telephone and Telegraph Co., 107 NLRB 1547, 1549-

1550 (1954) (footnote omitted).

46 Bethany Medical Center, 328 NLRB 1094, 1094 (1999).

47 International Protective Services, 339 NLRB 701, 702

(2003).

- 13 -

sudden cessation of work."48

For example, security guards

who walked off work at federal buildings without notice, at

a time of "heightened vulnerability" on the anniversary of

the Oklahoma City bombings, forfeited protection under the

Act.49

In contrast, security guards for public housing

sites who gave adequate notice of their walkout, so that

all their posts were covered by substitutes within twenty

minutes and no harm resulted, were unlawfully discharged.50

We can distill the following principles from these

lines of Board authority:

•

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

ad

elated 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.

III. Instructions for Processing Charges Involving

Political Advocacy

In processing charges involving the question of

whether political advocacy is protected under Section 7,

the Regions should first determine the purpose and subject

matter of the advocacy. With respect to advocacy directed

to legislators, the Region should investigate whether there

is a specific legislative proposal or enacted provision at

issue or whether the advocacy is more diffuse in its scope.

48 Id. at 702, citing Bethany Medical Center, 328 NLRB at

1094 (walkout by catheterization laboratory employees

protected because there were no emergency patients

requiring immediate treatment or other risk of harm to

patients).

49 International Protective Services 339 NLRB at 703.

50 Federal Security, Inc., 318 NLRB 413, 421 (1995), enf.

denied 154 F.3d 751 (7th Cir. 1998).

its scope.

48 Id. at 702, citing Bethany Medical Center, 328 NLRB at

1094 (walkout by catheterization laboratory employees

protected because there were no emergency patients

requiring immediate treatment or other risk of harm to

patients).

49 International Protective Services 339 NLRB at 703.

50 Federal Security, Inc., 318 NLRB 413, 421 (1995), enf.

denied 154 F.3d 751 (7th Cir. 1998).

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With respect to complaints or testimony to administrative

and regulatory agencies, the Region should determine the

subject matter of those appeals and the specific employee

concerns underlying those appeals. In the case of

political campaigning, the Region should determine if the

advocacy relates to specific issues or more generally to

the election of a particular candidate or slate of

candidates.

After determining the subject matter of the advocacy,

the Region should investigate any asserted nexus between

that subject matter and a specific employment-related

interest, working condition, or ongoing labor-management

dispute. Advocacy that is more diffuse in scope tends to

be more attenuated from employment-related concerns.

The Region should then investigate the means employed.

Political activity related to employment concerns that

occurs during nonwork time and in nonwork areas is

generally protected. On the other hand, on-duty political

advocacy is subject to restrictions imposed by lawful,

neutrally-applied work rules. As in any case, the Region

should also investigate whether any discipline imposed was

consistent with or a departure from a neutral,

nondiscriminatory policy and the employer's past practice.

Because we are newly announcing an enforcement policy

that seeks to clarify an area in which the legal rights of

the parties were heretofore unclear, the Region should

submit such cases to the Division of Advice using the

framework set forth in this Memorandum, supporting its

conclusion as to whether or not complaint should issue.

/s/

R.M.

cc:

NLRBU

Release to the Public