The Division of Advice within the Office of General Counsel (OGC) of the National Labor Relations Board (NLRB) recently made public two internal “Advice Memoranda” that we think may be of interest to employers. As described in more detail below, the memos shed some light on the OGC’s enforcement posture since Peter Ohr became the Board’s Acting General Counsel.
The first advice memo, Third Street Station, concludes that an employee’s text messages to the employee’s supervisor about customers not wearing face masks did not constitute protected activity under the National Labor Relations Act (NLRA) because there was no evidence showing that the employee voiced those complaints with other workers. The second memo, Trader Joe’s, also finds that an employee’s rant on social media directed at customers’ shopping habits during the pandemic was not protected speech under the NLRA.
So-called Advice Memos are issued by the General Counsel’s office in response to requests by the NLRB’s field staff for policy guidance on cases currently pending in their regional offices. These memos are considered internal guidance and reflect the views of the current General Counsel.
Members of the Center for Workplace Compliance (CWC) can read more here.