Acting General Counsel Peter Ohr Issues Memorandum Regarding “Concerted” Activity

On March 31, 2021, Acting General Counsel Peter Ohr issued a memorandum addressing the concept of “concerted activity.” As brief background, under Section 7 of the National Labor Relations Act, employees have the right to engage in “concerted” activities for the purpose of “mutual aid or protection.”

What constitutes “concerted” activity has been a heavily litigated issue before the NLRB for many years. Most recently, the Republican controlled NLRB has taken a narrower view of “concerted activity.”

Through this memorandum, Acting General Counsel Ohr signaled a much broader view of the concept. As he explains in the memorandum “Section 7 protection applies not only to union activity and labor organizing; it may also cover the fundamental precursor actions that form the cornerstone of any other actions the employees may take, like discussing or protesting wages, hours, and working conditions.”

Acting General Counsel Ohr then provided the following examples:

“… a hotel employee’s interview with a journalist about how earning the minimum wage affected her and employees like her, and how legislation to increase the minimum wage would affect them; a “solo” strike by a pizza-shop employee to attend a convention and demonstration where she and others advocated for a $15-per-hour minimum; and protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids.”

Acting General Counsel Ohr explains that in each instance, the employees’ conduct had the objective goal of improving their workplaces and concerned issues within their employer’s control, like payment of wages and employers’ willingness to hire immigrants.

In the memorandum Acting General Counsel Ohr also expresses his view that there are fundamental issues that are “inherently concerted,” such as discussion on wages and other terms and conditions of employment. Acting General Counsel Ohr concludes this discussion by signaling that “In the future, I will be considering these and other appropriate applications of the inherently concerted doctrine in suitable cases.”