Petitioning on Behalf of Interns Wasn’t Covered by NLRA

 

Allen Smith, J.D. By Allen Smith, J.D. December 2, 2019
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Employees advocating solely for nonemployees, such as interns, aren't protected by the National Labor Relations Act (NLRA), according to a recent National Labor Relations Board (NLRB) decision. The NLRB reached this determination in Amnesty International of the USA Inc., 368 NLRB No. 112, on Nov. 12, rejecting employees' assertion that the NLRA protected them because they had brought a petition on behalf of interns who were demanding that they be paid.

The interns weren't employees covered by the act, the board emphasized. Moreover, the employees were petitioning solely on behalf of the interns and not for themselves, the NLRB ruled.

As a result of the decision, "other types of nonemployees, such as gig workers and other independent contractors, will not be able to rely on support from employees within an organization to advocate on their behalf," predicted Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco. "Uber employees, for example, can potentially be disciplined or terminated for advocating on behalf of nonemployee drivers who want to be classified as employees. This could lessen the pressure on employers to make changes."

How the NLRA defines "employees" is unusual, said Mark Kisicki, an attorney with Ogletree Deakins in Phoenix. He noted that the definition excludes agricultural workers and supervisors, even though these workers are covered by other employment laws.

Expression of Disappointment Was Lawful

The board also held that it was lawful for the executive director of Amnesty International to express disappointment that employees didn't use an open-door policy to discuss making internships paid instead of signing and presenting a petition on behalf of the interns. The executive director's opinions about how to handle petitions in the future were suggestions rather than commands or requests, according to the NLRB.

In addition, the board found that the executive director's statement that she viewed the petition as litigious merely expressed her frustration that management's attempts to provide a positive response to the petition had instead resulted in backlash from employees.

In response to the petition, the organization sped up a plan to make the internships paid but announced it was planning to reduce the number of internships, which disappointed the staff. Nothing the executive director said rose to the level of conveying that she was angry, threatening reprisal, or accusing employees of betraying the employer or her, the NLRB determined.

"It is silly to find that an expression of disappointment is in some way an implied threat, which is what the union wanted the board to find in this case," said Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla. "An employer [that] prefers to work directly with its employees has a protected, free-speech right to say that."

David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, cautioned, "It should not be said that all expressions of disappointment in response to employee petitions are lawful." If expressing disappointment gives the impression that employees' jobs are in jeopardy, the board might consider that to be an unlawful threat, he explained.

Board Member's Disagreement with Ruling

NLRB board member Lauren McFerran concurred in the decision, saying that the executive director did not threaten employees with reprisal if they engaged in activity protected by the NLRA in the future. But she disagreed that advocating only for nonemployees is not covered by the act, saying the NLRB's holding "represents another instance of the majority reaching out to wrongly narrow statutory protections" for workers.

"The harmful consequences of the majority's position are easy to see," she said. Suppose instead the employees had protested the sexual harassment of an intern by a supervisor who preyed solely on interns. Following the logic of the NLRB's decision, the NLRA would seemingly not protect the employees' protest "because they were 'advocating only for nonemployees'—and thus could be fired with impunity for their protest. There is no support in law, policy or common sense for that result," she wrote.

McFerran added that the employees in this case could reasonably have believed that supporting the interns also could have improved their own terms and conditions of employment. Supporting the interns might lead to better working relationships with them. If the interns had gained paid status without reducing their ranks, employees might have benefited from having co-workers who performed better because they were paid and did not undercut employees' own working conditions by working for free, she said.

The decision is contrary to Supreme Court and NLRB case law, McFerran wrote, saying it should have been a straightforward case since there was no threat of reprisal.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

Scope of the Decision

Whether the decision will have a broad impact on employers is up for debate.

"Repeatedly, in the body of its decision and in footnotes, the board focused on the not-for-profit nature of Amnesty International, so it is not perfectly clear how the decision will be applied to for-profit organizations," said Jon Klinghoffer, an attorney with Goldberg Kohn in Chicago. "As an employer, I think it is prudent to read this decision pretty narrowly and limit its applicability to unpaid volunteers and interns of nonprofit companies."

Pryzbylski disagreed, saying, "I see no reason why this holding would be limited to interns." In general, he said, the NLRB is likely to determine that employees advocating solely for nonemployees, including volunteers, are not covered by the NLRA.

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