The Pittsburgh Steelers and the NLRB

The Pittsburgh Steelers of the 1970’s were the modern day NFL’s first dynasty. The road to a championship always went through the Steel City, frequently to the detriment of the team’s rival, the Houston Oilers. Frustrated by his team’s constant failure to beat the Steelers, the Oilers’ Head Coach famously said, “The first year we knocked on the door. This year we beat on the door. Next year we’re gonna kick [it] in.”

The National Labor Relations Board is now taking a similar tack to address the watering down of employee rights in the workplace over the past four years. Consider these recent developments:

  1. Knocking on the Door: The PRO Act. In February, the PRO Act legislation was introduced, seeking to permit labor organizations to encourage participation of employees in secondary strikes and prohibit employers from bringing claims against unions involved in secondary strikes. The bill allows collective bargaining agreements to require all employees to contribute fees to the union for the cost of such representation; and prohibits the replacement of, or discrimination against, striking workers. The bill addresses the procedures for union representation elections, provides employees with the ability to vote in such elections remotely by telephone or the internet, and establishes penalties against employers that do not comply with NLRB Orders. The House of Representatives approved the bill, and it has been sent to the Senate for action. It is reported that the bill faces an uphill battle in the Senate, so this knocking on the door may not achieve the Board’s goals.
  2. Beating on the Door: The Amazon Election. A retailers union spent time, money and effort to organize the Amazon warehouse workers in Alabama. The high profile of Amazon, combined with highly publicized reports of employee mistreatment and worker activism, would have been a boon to union organizing efforts nationwide if the union was successful. The union cause was bolstered by a pro-labor video message to the workers from President Biden. The union was resoundingly defeated. Garnering nationwide interest in this election was unusual, yet beating on the door did not yield the intended result.
  3. Kicking In the Door: GC 01-03. Enter the Acting General Counsel Peter Sung Oh: On March 31st, the AGC issued Memorandum (GC 01-03) which addresses protected, concerted activities, the foundation for all employee rights under the NLRA. Under GC 01-03, employees are protected not only when his or her conduct involves work-related matters, but also when the conduct involves employees’ interests as employees, meaning when the conduct involves efforts to “improve their lot as employees through channels outside the immediate employee-employer relationship.” Thus, activities that involve political and social justice advocacy may be protected if there is a direct nexus to employees’ interests as employees. It is anticipated that the newly nominated General Counsel, Jennifer Abruzzo, will aggressively advance this policy. Time will tell whether GC 01-03 kicks the door down and restores worker rights to the status quo that existed during the Obama administration.

While the Oilers never beat the Steelers in the championship game, employers should not be passive about the current threats posed by the current political climate. At a minimum, employers should brace for increased scrutiny by the Board of their treatment of employees and for vigorous prosecution of charges involving this expanded concept of concerted activities. A more proactive employer response would be to review all of its policies to deal with this new chapter.