A hint of light from the NLRB

Legal corner

Volume 121, No. 5May, 2021

Harvey Mars

After four years of darkness, there’s finally a hint of light coming from the National Labor Relations Board, just in time for Labor History Month. This is a direct result of the new Biden administration and its appointment of Peter Sung Ohr, the NLRB’s new acting general counsel. On March 31, Mr. Ohr issued a memo to all NLRB regional directors indicating that the NLRB would be vigilantly protecting the right of employees to engage in “concerted activity for their mutual aid and protection.” This is particularly important where concerted activity occurs outside the context of union organization and bargaining. All employees, regardless of whether they have organized or selected a certified bargaining representative, have the legal right under Section 7 of the National Labor Relations Act to engage in “concerted activity” (including speech, protests and picketing) with respect to the terms and conditions of their employment.

Mr. Ohr affirmed in his memo that while concerted activity “can be a precursor to a union campaign, it can also occur outside of the context of union activity, such as in instances where employees raise safety concerns to their employer or seek protection from government agencies. Nonetheless, constraints and limitations placed on employees engaging in concerted activities, and adverse actions taken against them in response to their protected activity, serve to effectively undermine the declared policy of the United States.” Mr. Ohr’s full memo can be found here (look for GC 21-03).

Mr. Ohr’s directive foreshadows what labor advocates hope will be good things to come from the NLRB. The decision to issue this memo seems to be a direct result of the improper firing of several Amazon workers who had spoken out about Amazon’s lack of Covid safety protocols at warehouses and elsewhere. These protests also involved Amazon’s failure to address deforestation and climate change issues that were prompted by its operational practices. Amazon claimed that the reason for the employees’ termination was their breach of the company’s “external communication policy.”

But Amazon was found to be in the wrong. After investigating these terminations, the NLRB determined that the employees’ conduct was legally protected concerted activity under labor law and that their firings by Amazon were retaliatory. Unless Amazon settles the case, the NLRB’s next step will be to issue a formal complaint, which will result in a trial before an administrative law judge.

On a less optimistic note, Amazon workers in Alabama who had campaigned to form a union with the RWDSU failed to achieve the necessary majority. The results were extremely disappointing, with the number of votes cast in opposition to certification more than double the votes cast in favor. The RWDSU believes that the lopsided voting was the result of unfair labor practices committed by Amazon and will challenge the results of the election on the grounds that Amazon had intimidated its employees and improperly campaigned against unionization. If its election challenges succeed, the RWDSU will be entitled to a new representation election.

Despite this obvious setback, there is an obvious dynamic shift at the NLRB in favor of worker rights. Most Americans probably don’t think about the NLRB when they cast their vote for president, but for workers, union members and labor activists, this is one more example of why having a new president in the White House really matters.


Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived here. Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.