Firing workers for off-the-job protests

by Wade Rathke

September 17, 2020

New Orleans   A small notice in an email caught my eye. A National Labor Relations Board (NLRB) attorney in a newly released guidance letter wanted to make sure that employers knew that it was alright to fire workers who are involved in advocating for police reform or racial justice outside of the workplace, unless the political or social causes for their protests are directly tied to the workplace.

Was this really necessary? Or, was it simply the fact that the NLRB now, with nothing but Trump-appointed Republicans, felt it important to do their part in joining the Trump team in pushing back during this election season on any effort to curb police abuses or stop racial profiling and attacks? Lawyers refer to this kind of thing as “chilling,” an attempt to act preemptively to discourage workers from getting involved in protests.

All of this harkens back to the times in the South – and elsewhere — when Black workers were routinely fired for being involved in civil rights protests or boycotts against businesses that wouldn’t serve or hire Black workers. Bosses wanted to rule the private and political life of their workers because it reflected on them and their position in a racist social structure where they couldn’t control “their” people. With long memories, we can also recall workers fired for demonstrating against the war in Vietnam. The examples are endless, but is this the American way?

Not really. Read closely this NLRB advisory and note that protests by workers are still protected if they are tied directly to the workplace or its issues.

In fact, a 2018 NLRB’s counsel memo in a Detroit case involving a company called EZ Industrial that fired eighteen of its Mexican workers for joining the Day Without Immigrants protest in 2017 was clear on this issue. The General Counsel for the Trump NLRB, as a Maine law firm described it,

…found that the Mexican employees’ participation in the “Day Without Immigrants” fell squarely within Section 7 of the NLRA’s protection of “concerted activity” for the purpose of “mutual aid or protection” to improve working conditions or terms of employment. The NLRB further found that Section 7 protection “extends to concerted political advocacy” when the subject matter of that advocacy has a direct nexus to employees. Translation? Since the Mexican workers were protesting for “mutual aid and protection” of themselves and other immigrant workers subject to possible raids and discrimination in the workplace, the “Day Without Immigrants” was protected activity under the law.

In short, there’s a way for workers to take these actions, but you have to be careful. The whole point of the latest NLRB advisory is to discourage workers being involved in reform movements. The whole point of unions is advising workers on how they can participate in such movements and still be shielded by the Act.

It is also worth advising workers and everyone else that, despite the machinations of the current president and attorney general, freedom of assembly is still firmly planted in the constitution. In fact, those freedoms are the origins of the NLRB’s section 7 protections. Most state constitutions also underscore those protections and, in some cases, expand the ability of workers to organize even while trying to keep them out of unions.

We need to make sure we’re ready to protect everyone’s rights in this fight both at work and in the streets, no matter how many ways obstacles are put in our way.

Wade Rathke is founder and chief organizer of ACORN and ACORN International. You can find Wade’s recent past posts here Chief Organizer Reports. And you can link to his website here Chief Organizer ACORN/ACORN International.

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