The Volokh Conspiracy
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Participating in Black Lives Matter Protest Isn't Protected by Federal Labor Law
Federal labor law limits employers' ability to fire employees for "engag[ing] in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (It also limits unions' ability to discipline members for their speech on union matters.) But, unlike the laws in some states, it doesn't protect employees' broader political activities. The question then arises: What kinds of concerted activities are for purposes of employees' "mutual aid or protection"?
In NLRB v. SFR, Inc., the National Labor Relations Board (Members Kaplan, Prouty & Wilcox) affirmed Administrate Law Judge Arthur Amchan's decision that participating in Black Lives Matter protests wasn't sufficiently focused on employee rights:
Specifically, we agree with the judge that the employees' participation in Black Lives Matter (BLM) protests was not shown to be for mutual aid or protection in the context of the facts here and under extant law; therefore, we dismiss the allegations.
{Although Member Wilcox agrees that the evidence here does not establish that the employees' participation in outside BLM protests was for ""other mutual aid or protection" under Sec. 7 as defined in Eastex, Inc. v. NLRB (1978), she observes that the judge's articulation of the relevant standard was unduly narrow. Instead, as the Board explained in Home Depot USA, Inc. (NLRB 2024), "an employee's concerted actions are protected by Sec. 7 of the Act so long as an objective is protected. The fact that the employee's actions may have other objectives, or even that those objectives may predominate, is immaterial."}
And here's an excerpt from the decision that was affirmed (read the full document for more factual details):
Nichols and King engaged in concerted activity by attending a BLM protest together…. However, in the circumstances of the instant case, none of the alleged discriminatees engaged in activity protected by Section 7 of the Act. The lead case on this issue is Eastex, Inc. v. NLRB (1978). In that case, the Supreme Court held or reaffirmed the proposition that Section 7 protects employees when they engage in otherwise protected concerted activities in support of employees of employers other than their own. The Court also made it clear that Section 7 protection may cover appeals to persons or entities that are not being solicited for support in their capacity as an employer, such as an appeal to a state legislature opposing "Right To Work" legislation, and an appeal to voters to elect representatives favorable to the employees' concerns.
However, Justice Powell, in the majority opinion also wrote, "It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as employees than other such activity. We may assume that at some point the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the "mutual aid or protection" clause."
BLM was at least originally a protest movement against police misconduct of African Americans. It may well have morphed into a protest movement against all forms of racial injustice, including in the workplace. Nevertheless, that is not BLM's primary focus. At the BLM protest attended by Taylor, not a word was said about racial discrimination in the workplace. The protest appears to have been focused entirely on mistreatment of African Americans by the police and specifically the George Floyd murder.
There is no connection between the BLM protests in this case and any concerns about racial injustice at Parkside Cafe or any other particular employer. In this record, there is no evidence that the BLM protests focused on any specific workplace issue festering in workplaces generally, e.g. racial discrimination in hiring. To find that the Act protects activity which by no stretch of the imagination can be related to the workplace, is to expand the scope of the Act far beyond that to which it has ever been applied before. Moreover, I doubt it was intended to reach such activity.
The consequences of such an expansion of the scope of the Act would logically forbid employers for prohibiting all sorts of divisive activity from their workplaces, which are at best tangentially related to the concerns of employees as employees.
I find that the attendance of Taylor, King and Nichols at BLM rallies, at least in the circumstances established in this record, is so attenuated to the interests of the alleged discriminatees as employees to fall outside of the "mutual aid or protection clause. Thus, even if they were constructively discharged, Respondent did not violate the Act by doing so….
The Administrative Law Judge also held that the employees weren't "constructively discharged" (i.e., pressured into quitting because work conditions had become intolerable) or told that they couldn't remain employed if they supported Black Lives Matter:
While Dykes expressed his displeasure towards BLM and his employees' participation, he made no demand or suggestion that they could no longer work at Parkside if they continued to attend BLM protests…. Bagwell, who normally set employee work schedules and supervised them, never conditioned continued employment on ceasing support for Black Lives Matter. In fact, in the three-way text exchanges between Bagwell, Dykes and Taylor, Bagwell wrote that he was not firing anybody. Given this situation, which was ambiguous at best, I find that the discriminatees were not given a clear and unequivocal choice between continued employment and continued support for Black Lives Matter….
