Acting NLRB General Counsel announces enforcement priorities

Following the practice of his recent predecessors, National Labor Relations Board (NLRB) Acting General Counsel (GC) Peter Sung Ohr announced his office's enforcement priorities in a memorandum published on March 31, 2021 (GC 21-03). Generally, the memo addresses cases alleging discrimination based on protected concerted activities.

Mutual aid or protection

Section 7 of the National Labor Relations Act (NLRA) protects employees' right to engage in concerted activities for "mutual aid or protection." Ohr's memo notes the NLRB uses an objective method to analyze whether an activity is for mutual aid or protection. Therefore, employees' subjective motives are irrelevant.

The mutual aid or protection clause also "covers employee efforts to 'improve their lot as employees through channels outside the immediate employee-employer relationship,' as well as activities 'in support of employees of employers other than their own.'" In addition to union advocacy, Ohr's memo says employee political and social advocacy, when it has a direct nexus to employees' interests as employees, will be an enforcement priority.

In vigorously pursuing mutual aid or protection cases, Ohr's memo says he will work within the legal framework set forth in two NLRB rulings from 2019: