On February 27, 2023, the General Counsel of the National Labor Relations Board (“NLRB”) released an advice memorandum (“Memorandum”) on the topic of an employee discussing issues of racial discrimination in the workplace and on social media. The General Counsel determined that discussions of racial discrimination in the workplace are protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”), and therefore, the NLRA protects employees who engage in such discussions from employer retaliation. This determination is similar to a General Counsel advice memorandum from January 20, 2016, in which the General Counsel concluded that an employee’s “discussion of alleged racial discrimination in terms and conditions of employment was protected under the Board’s doctrine of ‘inherently concerted’ activity.” However, the Memorandum issued on February 27 seemingly expands that standard to employees who discuss racial discrimination regardless of whether the employee discussions are related to racial discrimination occurring in the workplace or made in connection to the terms and conditions of employment.
The Memorandum involved an unfair labor practice charge filed against the Kaiser Permanente Bernard J. Tyson School of Medicine (the “Employer”) by its employee, a clinical professor, following the nonrenewal of the clinical professor’s contract. On August 15, 2020, a Black male was shot and killed by police near the Tyson School of Medicine campus. The school’s Dean sent an email to faculty, staff and students addressing the incident. The clinical professor and other faculty members discussed that that they felt the email was “triggering, tone deaf, and showed the Dean’s implicit racial bias.” Subsequently, another faculty member addressed these concerns with the Dean. The Dean later instructed the clinical professor to convene a small group discussion with students on the subject of institutional racism causing bias in medicine. During the discussion, a student became upset finding the subject matter (e.g. “white fragility” and “overrepresentation in medicine”) inappropriate. Later, the student reported the clinical professor igniting a 15-week investigation that went beyond the scope of the small group discussion, and included an investigation of non-related matters. The Employer temporarily suspended the clinical professor’s teaching privileges.
The Employer did not renew the clinical professor’s contract upon expiration; instead, the Employer extended the contract several times between 2020 and 2021while simultaneously conducting its workplace investigation. Ultimately, the Employer informed the clinical professor that it would not renew the clinical professor’s contract. Prior to the expiration of the contract, the clinical professor posted several tweets on their personal Twitter page. The tweets included the following language and/or subjects:
- Reporting on the professor’s classroom discussion on racial bias in medicine, health disparities, racism in society generally, and subsequent suspension
- Encouraging medical professionals to speak up by advising: “[t]here is so much that can be done outside of Medicine”, “[u]se your voices to augment the marginalized” and “start an antiracism journey”;
- Requesting that their Twitter followers retweet his posts and “augment [their] voice”.
A subsequent Tweet, just prior to the clinical professor’s discharge, discussed the clinical professor’s issues with the renewal of their contract hinging on their participation in a reconciliation process with the Employer. The clinical professor also described a message received from a presumptive co-worker stating: “[w]e stand behind you. [f]ight for justice”.
“Concerted Activity” Under Section 7
Under Section 7, concerted activity is that which is “engaged in with or on the authority of other employees, and peripheral to core group action but also retaining protection, is individual conduct both in the form of preliminary discussion and where such conduct is the logical outgrowth of earlier collective activity or discussions”. It also includes statements by a lone employee for the purpose of initiating, inducing or preparing co-workers for group action, or when directed at management to communicate a group complaint.
“Mutual Aid and Protection” Under Section 7
The second element, “mutual aid and protection”, under Section 7, is the goal of the concerted activity and must seek to improve the terms and conditions of employment or the improve conditions for employees generally. The General Counsel noted in its Memorandum that this element is satisfied when an employee solicits other employees for support, even where the issue appears to concern only the soliciting employee, the soliciting employee would receive the immediate benefit from a favorable resolution of the issue, and the soliciting employee does not make explicit the employees’ mutuality of interests.
General Counsel Conclusions
The General Counsel concluded that the action taken by the School, specifically the suspension and nonrenewal of the contract, was a result of both the professor’s classroom discussion and the professor’s tweets in violation of Section 8(a)(1) of the NLRA, finding that the employee’s actions constituted concerted activity for the purpose of mutual aid and protection.
First, the General Counsel determined that the subject matter of the classroom discussion, that is racial bias in the medical profession, systematic racism, and discussion of the Dean’s email as a failure in addressing concerns of Black faculty, much like wages, work schedule changes and job security, was inherently concerted activity because the discussion occurred between fellow faculty members satisfying the Board’s requirement that discussions involve at least two employees. Although the clinical professor engaged in the discussion with their students, another faculty member was present in the room during the exchange. Further, the General Counsel determined that because the discussion involved the suppression of racism in the medical community generally such would be for the “benefit of all employees”, thus the discussion was for mutual aid and protection.
Similarly, the General Counsel reasoned that that the clinical professor’s tweets were are also concerted activity for mutual aid and protection finding that the tweets discussing the “overall issues of race and racism in medicine” were inherently concerted activity. The General Counsel determined that the clinical professor posted the tweets to induce others to group action. A lack of evidence demonstrating that the clinical professor’s co-workers interacted with the tweet was found immaterial because concerted activity did not have to occur between co-workers; rather any employee covered by the NLRA was sufficient, and the General Counsel presumptively concluded that some of the several hundred individuals who interacted with the tweets were likely employees covered by the NRLA. Here, then, the General Counsel appeared to value the degree of social engagement with the tweets, highlighting that the tweets received 4,300 likes, 2,100 retweets and hundreds of replies to the tweets, reasoning that there was considerable attention from social media users. Additionally, the General Counsel determined that the tweets were from a “logical outgrowth” of the classroom discussion on racial discrimination. As for the second element the General Counsel found that the tweets were for mutual aid and protection because the tweets sought to improve terms and conditions of employment, namely addressing the impact of racism at the School and in the medical field generally, and to solicit support for the clinical professor with his personal employment dispute and with addressing racism in medicine.
Although the School alleged that the clinical professor’s poor performance was the basis for its nonrenewal of their contract, the General Counsel determined this was pretexual and that the School’s adverse action was a result of its animus towards the classroom discussion and tweets by the clinical professor
The General Counsel’s interpretation in this case suggests that the NLRB is expanding its interpretation of concerted activity for mutual aid and protection. This Memorandum signals to both unionized and nonunionized employers that workplace issues involving race are not solely within the federal purview of the Equal Employment Opportunities Commission (EEOC) and may have NLRB implications as well. The Memorandum provides employers with valuable insight on the NLRB’s stance on Section 7 rights under the Biden Administration. Further, this Memorandum demonstrates that employers should respond cautiously when employees engage in discussions regarding race, sex and gender discrimination in both the workplace and on social media and consider the implications of the NLRA, and not just Title VII and the applicable anti-discrimination laws, prior to taking any adverse action against employees in these situations. Additionally, this Memorandum serves as a useful reminder of the importance of training human resources personnel and management on how to identify potential concerted activity.