The NLRB Expands Protected Activity Under Section 7 of the NLRA
On August 31, 2023, the National Labor Relations Board (NLRB) made a decision that dramatically expands employee protections under Section 7 of the National Labor Relations Act (NLRA).
As a reminder, Section 7 of the NLRA provides protection to employees who communicate (or otherwise cooperate) “for the purpose of collective bargaining or other mutual aid or protection.” Historically, the NLRB has interpreted this to mean that employees are only protected under the NLRA if the concerted activity is between employees. Activity between employees and non-employees was typically not considered protected activity.
The decision reached in American Federation for Children, Inc. 372 NLRB No. 137 reverses prior NLRB precedent in allowing Section 7 protection even if the concerted activity is done between an employee and non-employees. So long as the employees, in assisting non-employees via concerted activity, may potentially help themselves through some present or future employment benefit, then Section 7 would protect that concerted activity.
This shift represents a large expansion of Section 7 protections. Employers will now be required to allow much more concerted activity and with individuals that they may not have any control or leverage over. How this will affect union organizing in and around employment spaces has yet to be seen. As this is a new decision reversing long-held precedent, expect many legal challenges and implementation issues in the future.
You can read the entire NLRB decision HERE.