NLRB Issues New Advisories

Last week, the National Labor Relations Board (Board) released three Advice Memoranda. While two of them (UFCW Local 951 (Meijer); Meijer Great Lakes (07-CA-240170) and Teamsters Local 87 (Aramark) (32-CB-269020)) are of limited relevance to our members, Third Street Station (13-CA-269669) from May 7, 2021, addresses whether an employer violated the National Labor Relations Act by terminating an employee for raising concerns about COVID-19 in the workplace amounting to protected concerted activity.

The employee—a bartender—complained to management about the employer’s decision not to pay employees for time spent cleaning in preparation for reopening after a period of shutdown during the pandemic. The employee participated in a text message exchange with a manager and another bartender in which the manager stated the owner was not going to make the employees wear masks. The employee responded, “[e]ven though Mayor Burns says we have to [?]”

There was no evidence that the employee discussed either of these issues with coworkers or that either issue was raised again by the employee or any other employees.

The employee worked three times after the establishment reopened. The employee complained to supervisors about risks from patrons and adherence to local COVID-19 ordinances and expressed concern that one of the owners had brought a firearm into the bar during a shift. In text exchanges with a supervisor, the employee informed the supervisor they would only feel safe returning to work once there were no firearms present, and the employer altered its COVID-19 policies for patrons. The employer told the employee that it was removing them from the schedule due to unwillingness to work.

The Board determined that the employee was not terminated for protected concerted activity. Instead, the employee was terminated for refusing to work unless the owner stopped bringing a gun to work and allowing patrons to come inside. Those communications were not protected concerted activity because the employee did not discuss them with other employees or otherwise involve them in efforts to improve working conditions.

For questions relating to protected concerted activity or any other aspect of labor law, email