NLRB Memo Signals the Board’s Continued Expansion of Employee Rights and What Can Be Deemed As “Concerted Activity”


The National Labor Relations Act (NLRA), passed in Congress in 1935, was designed to protect workers’ rights and bring an element of fairness to the power dynamic between employers and employees. The NLRA established the right of private sector workers to enjoy full freedom of association and pursue better working conditions without fear of employer retaliation.

Under the NLRA:

  • Employees have the right to organize, form, or join unions
  • Employees have the right to participate in concerted activities
  • Employees have the right to designate a representative to negotiate collective bargaining agreements or not
  • Employers are required to engage in collective bargaining with organized employees

Through collective bargaining, employees have more bargaining power. “Concerted activities,” which are actions carried out by two or more employees to increase pay, benefits, or other working conditions, often empower collective bargaining efforts. The NLRA prohibits employers from retaliating against workers who take part in union actions or concerted activities.

The National Labor Relations Board

The NLRA also created the National Labor Relations Board (NLRB). The NLRB is an independent federal agency with the purpose of safeguarding the employees’ rights established in the NRLA. It also works to “prevent and remedy unfair labor practices committed by private sector employers and unions” and “conducts secret-ballot elections regarding union representation.”

Understanding “Concerted Activity”

In allowing workers the right to engage in concerted activity, the NLRA gives workers the opportunity to address work issues in a number of ways. For example, workers can:

  • Discuss wages, benefits, and other working conditions with each other
  • Create and disseminate petitions demanding work-related improvements, such as more flexible schedules or better hours
  • Participate in work actions, such as joint refusals to work under dangerous conditions
  • Unite with colleagues to discuss problematic issues directly with an employer, the media, or a government agency

Single employees are also safe from retaliation if they engage in protected concerted activities as a representative or on the authority of other employees. For example, they may deliver a collective complaint to an employer.

Actions Not Protected

Employees are not protected by the NLRA if they say something or commit an act that is especially offensive or intentionally false or if they denigrate the employer’s product or service in ways not connected to a labor issue.

NLRB Memo Seeks Broader Application of “Concerted Activities”

An “Advice Memorandum” issued by the NLRB Office of General Counsel shows the Board is working to promote the expansion of employee rights regarding concerted activities.

The Situation

A Home Depot employee wearing a Black Lives Matter (BLM) pin on his Home Depot was given the choice of wearing the button or keeping his job. Home Depot enforces a uniform policy prohibiting employees from displaying religious or political messages not related to the workplace or other content violating policies on harassment or discrimination. The company contends its policy is designed to convey a consistent message to customers. The employee refused to remove the pin and was first suspended and then ultimately resigned.

In response, the NLRB issued a complaint, alleging the employee had been discriminated against – that Home Depot used its uniform policy to single out and punish workers wearing BLM initials on their uniform aprons, and stating Home Depot “caused the termination” of the employee given the choice to resign or wear the pin.

According to the complaint, employees were also told they would face “unspecified consequences” for engaging in “protected concerted activities regarding racial harassment.” The NLRB contends the employer, Home Depot, has been “interfering with, restraining, and coercing employees in the exercise of the rights guaranteed” in the NRLA. Specifically, those rights allow employees to engage in protected concerted activities.

The Memo

About a month after issuing the complaint, and weeks prior to the complaint being heard before a judge, the NLRB disseminated the “Advice Memorandum” further explaining its position.

The NLRB asserts the employee’s action in wearing the pin should be protected under the “Board’s doctrine of ‘inherently concerted’ activity.” This action, as well as others included in the complaint – writing emails, having conversations with other employers, supervisors, and managers about continuous harassment and discrimination, and participating in other BLM-related activism – falls into the protected category as systemic racism affects workplace conditions. The employee, the NLRB contends, was fighting against workplace racism and to create a more inclusive environment.

The Decision

In the complaint, the NLRB sought to have Home Depot rescind its dress policy prohibiting employees from exercising their right to protected concerted activities. The decision rendered by an administrative law judge, however, ruled in favor of Home Depot. According to the HR Policy Association’s (HRPA) 2022 NLRB report, the judge “held that the BLM messaging lacked a significant nexus to employees’ job conditions and that employees did not have a right to wear BLM clothing at work.”

Significance of the NLRB Memo

Though the judge’s decision did not favor the NLRB’s contention, the NLRB’s actions in bringing the complaint and distributing the advice memorandum still carry significance. The NLRB is seeking to expand what is considered protected concerted activity by including social and political protests in that category.

Potential results, according to the HRPA and the American Library Association-Allied Professional Association (ALA-APA), include:

  • Changes to an employer’s ability to establish terms and conditions of employment, specifically those designed to “maintain productivity and positive and inclusive work environments”
  • Necessitating employers’ review and possible revision of handbooks, workplace policies and procedures
  • Stricter Board oversight regarding the rules and policies governing a work environment
  • Closer Board scrutiny and identification of employers who retaliate against workers engaging in social or political activism

Effective and Comprehensive Legal Representation

The issues discussed above will have an ongoing impact on Texas employers. As times change, so do the interpretation and application of complex labor and employment laws. Whatever your situation, the experienced workers compensation defense lawyers at MehaffyWeber is prepared to untangle those complexities and give you the knowledgeable, attentive, bold representation you need. Reach out today to partner with us today. We work hard and get results.