Many commentators and practitioners have expressed surprise over the National Labor Relations Board’s (NLRB) expansion of the scope of Section 7 rights. The Board’s recent decision in Home Depot¹ is the latest lightening rod for this concern.

On its face, the concern is understandable.

The Decision in Home Depot

In Home Depot, the Board found that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7 of the National Labor Relations Act.

The Board reached this finding despite the fact that Black Lives Matter, a social/political movement, seemingly has nothing whatsoever to do with employee’s terms and conditions of employment.

Recall that under Section 7, employees have the right to engage in concerted activity regarding work-related issues. Critics of the Home Depot decision assert that the expression of support for the Black Lives Matter movement is unrelated to terms and conditions of employment and, therefore, should not be protected by Section 7 of the Act.

The Board and general counsel’s expansion of Section 7 rights, however, should come as no surprise. The Board’s general counsel, Jennifer Abruzzo, has been transparent regarding her goal of expanding the breadth of Section 7 rights.² The general counsel periodically releases memoranda soliciting case

submissions from the regions regarding targeted legal questions – in effect creating a quasi “docket” of hot topics to be addressed by the Board. The general counsel followed that approach in selecting cases to litigate that would support the expansion of Section 7 rights.

Her efforts are coming to fruition. In fact, in the past 10 months, the Board has issued decisions that have bolstered and broadened each element of Section 7 coverage.

Recall that the essential elements of a Section 7 claim are:

• that an employee engaged in concerted activity;
• for mutual aid or protection (i.e., to improve their “lot” as employees); and
• (3) that the employee has done nothing to lose protection under the Act.

In less than a year, the Board has issued decisions on each element of Section 7 coverage.

Consider the following:

Concerted Activity: Miller Plastic Products

In Miller Plastic Products,³ the Board addresses the issue of the standard to be used in determining whether employee conduct is “concerted.” In doing so, the Board overruled its previous decision in Alstate Maintenance, LLC,⁴ and found that, “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.”

The Board found that Alstate’s approach, “imposed an unduly cramped interpretation of concerted activity under Section 7 – one that assesses concerted activity in terms of isolated points of conduct rather than the totality of the circumstances.”

Miller Plastic Products signals a return to a more expansive interpretation of what constitutes “concerted” activity.

Mutual Aid and Protection: American Federation for Children, Inc.

American Federation for Children⁵overruled the Board’s prior decision in Amnesty International.⁶

Amnesty International narrowly construed the mutual aid and protection element under Section 7. In American Federation for Children,the Board found that an employee’s conduct of advocating on behalf of a coworker who was not a statutorily protected employee was a form of mutual aid and protection covered by Section 7.

The Board reasoned that advocacy efforts in support of nonemployees can benefit current employees by improving the overall working conditions. On a broader level, the decision signaled the Board’s willingness to expand the breadth of what constitutes mutual aid and protection under the Act.

Loss of Protection: Lion Elastomers

In Lion Elastomers,⁷ the Board overruled prior precedent regarding standards that should be applied in cases where employees are disciplined or discharged in connection with misconduct that occurred during otherwise protected activity under Section 7.

Lion Elastomers overturned the Board’s 2020 decision in General Motors, LLC.⁸ In General Motors, the Board rejected the traditional “setting specific” standard in cases where employees are disciplined or discharged in connection with misconduct associated with otherwise protected activity. Instead, General Motors employed a test that made it easier for employers to sanction misconduct under the Wright Line burden shifting framework.

In Lion Elastomers, the Board officially returned to the “setting specific” standard that focuses on the severity of an employee’s misconduct along with the applicable context in which it arose. The “setting specific” standard, overall, is more tolerant of employee misconduct, making it more difficult for employers to discipline employees for conduct that otherwise is protected under Section 7.

No Surprise

While many believe that the Board adopted an overly broad view of Section 7 rights in its Home Depot decision, nobody should be surprised. The general counsel has been methodical in charting a course toward the expansion of Section 7 rights.

This is evidenced by the fact that the Board has issued decisions in the past year that adopted employee-friendly interpretations of each of the elements needed to establish Section 7protection.

The general counsel shows no signs of slowing down. She actively is seeking to expand the scope of conduct that could be considered “inherently concerted” under Section 7. While that is a topic for another day, the effect would be to make bringing Section 7 charges even easier.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹Home Depot, 373 NLRB No. 25 (Feb. 21, 2024).

²See, e.g., GC Memorandum 21-04, Aug. 12, 2021.

³Miller Plastic Products, 372 NLRB No. 134 (Aug. 25, 2023).

⁴Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).

⁵American Federation for Children, Inc., 372 NLRB No. 137 (Aug. 31, 2023).

⁶Amnesty International, 368 NLRB No. 112 (2019).

⁷Lion Elastomers LLC, 372 NLRB No. 83 (May 1, 2023).

⁸General Motors, LLC, 369 NLRB No. 127 (2020).