Labor & Employment Law Daily NLRB: Employee support of unpaid interns’ petition not protected activity under NLRA
Friday, November 15, 2019

NLRB: Employee support of unpaid interns’ petition not protected activity under NLRA

By Ronald Miller, J.D.

Activity advocating only for nonemployees is not for “other mutual aid or protection” within the meaning of Section 7 and accordingly does not qualify for protection under the NLRA.

Statements by an employer’s executive director regarding a petition that employees joined in support of compensation for interns did not imply any threat of reprisal against the employees or suggest they had been disloyal to the employer, concluded the NLRB in a three-member decision, finding that the statements did not violate Section 8(a)(1). There was no evidence the employees joined the petition for any reason beyond supporting the nonemployees’ effort to be paid. Because activity advocating for nonemployees is not protected activity, the Board reversed the findings of an administrative law judge and dismissed the complaint allegations. Member McFerran filed a separate decision concurring in the result (Amnesty International of the USA, Inc., November 12, 2019).

Interns’ petition. The employer, a nonprofit advocacy organization, usually maintains a complement of approximately 25 employees and 15 interns. The interns typically volunteer for a single academic semester. They are unpaid and receive no other economic compensation from the employer. The employees rely on the interns to perform administrative tasks and to otherwise assist in the completion of the employer’s work, such as reporting on governmental hearings and drafting content for publication.

In February 2018, a group of interns started planning to write a petition requesting that the employer provide them with financial compensation for their volunteer work. The interns approached an employee for assistance, and he provided feedback on the draft petition. Subsequently, the employee and a union steward encouraged other employees to sign the petition, collecting signatures from all but a few of their coworkers.

Paid internships. As it happened, the employer’s executive team had been in discussions for over a year about changing to a paid internship program. Their plans included shrinking the program to just three paid interns for the entire organization and cutting program goals and performance expectations because of the sharp reduction in interns. The employer had anticipated implementing the new program in 2019.

In April 2018, the employer’s executive director held a meeting to present the results of an employee satisfaction survey. At this point, the employer was unaware of the interns’ petition. During the meeting, the employee who had helped collect signatures asked the employer to consider paying interns. The executive director responded positively and discussed the employer’s plans for a paid internship program, which included a significant reduction in the number of interns.

The next day, the interns emailed the executive director their signed petition, which included employee signatures. The interns did not refer to the prior day’s meeting or the employer’s plans, nor did they make any specific demands or requests pertaining to the paid internship program beyond expressing their opinion that interns should at least be partially compensated.

After receiving the petition, the employer decided to accelerate plans to switch to paid internships. On April 9, the executive director held two meetings, one with current interns and one with employees who signed the petition, to announce the employer’s plans to implement paid internships that fall. Many employees reacted negatively to the announcement. They were concerned about the effect that the sharp reduction in interns would have on their ability to perform their work and about the process for allocating the interns’ services. The executive director expressed her disappointment that the employees did not avail themselves of the employer’s open door policy to discuss matters with her before using a petition. She also conveyed her belief that the petition was adversarial and threatened litigation.

One-on-one meeting. On May 9, the employee initiated a one-on-one meeting with the executive director to discuss a number of issues, including the April 9 meeting about the petition. During this meeting, the executive director spoke about how the employer perceived the petition to be “litigious,” “adversarial,” and “sort of levy[ing] a threat.” She also confessed to feeling “very embarrassed” that her employees felt unable to approach her about a policy change and disappointed that she did not “have the kind of relationship with staff” that she thought she had. The executive director also suggested that it would have been “really helpful” to have had advance notice of the interns’ interest in paid internships, and that the employee could have given her a heads-up.

Protected concerted activity. An administrative law judge found that the executive director’s statements at the April and May meetings regarding the petition violated Section 8(a)(1) in several respects. Specifically, the ALJ concluded that the executive director unlawfully (1) instructed employees to communicate complaints to management orally before submitting them in writing, (2) threatened employees with unspecified reprisal because they engaged in protected concerted activity, (3) equated protected concerted activity with disloyalty, and (4) requested that employees report to management employees who are engaging in protected concerted activity. The Board disagreed.

Here, the Board observed that the unpaid interns did not receive or anticipate any economic compensation from the employer, and therefore did not constitute employees under NLRA Section 2(3). There was no evidence that the employees joined the petition for any reason beyond supporting the nonemployees’ effort to be paid, which is not protected activity.

Coercion. The Board also disagreed with the ALJ’s finding that the executive director’s statements violated Section 8(a)(1) by coercing employees in the exercise of their right to engage in protected activity in the future. Under Section 8(c), “[t]he expressing of any views, argument, or opinion shall not constitute or be evidence of an unfair labor practice if it contains no threat of reprisal or force or promise of benefit.” This means that “not all displeased communications from an employer to an employee are coercive. [T]o violate Section 8(a)(1), a statement must contain a threat of reprisal, or force or promise of benefit.” While the executive director’s statements conveyed her disappointment about how the petition transpired, they did not contain any threat of reprisal.

The executive director received the petition just a day after she had outlined the employer’s plans for a paid internship program, and the petition did not make any special demands about the internship program. She was genuinely surprised when the employees were upset by her announcement about accelerating plans to implement a paid internship program. It was in this context that the executive director expressed her opinion that it would have been helpful for employees to use the employer’s open door policy to discuss paid internships before the employer felt the need to implement the program under pressure of the petition.

Suggestions, not commands. Additionally, the executive director also expressed her opinion that it would have been helpful for the petition signers to have provided her with notice so there would have been dialogue about the specifics of their request before presenting her with the petition. Considered in context, the Board viewed her opinion about how to handle petitions in the future to be, at most, suggestions rather than commands. Nothing the executive director said rose to the level of conveying that she was angry, let alone that she was threatening any reprisal or accusing employees of betraying her or the employer.

Accordingly, the Board reversed the ALJ’s finding that the executive director’s statements about a petition from unpaid interns to be paid violated the NLRA, and dismissed the complaint allegations.

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