Section 7 of the National Labor Relations Act protects concerted activities “for the purpose of collective bargaining or other mutual aid or protection” in the workplace. If you squint hard enough and aren’t a slavish opponent of chaos theory, an argument could be mustered that pretty much any concerted activity by employees is protected under Section 7. After all, everything relates to everything else if you try hard enough.

Except going to Black Lives Matter demonstrations. And stunningly, this conclusion comes from both an NLRB administrative law judge and the National Labor Relations Board itself, which has rarely found any conduct by employees unprotected.

Nichols and King engaged in concerted activity by attending a BLM protest together…. However, in the circumstances of the instant case, none of the alleged discriminatees engaged in activity protected by Section 7 of the Act. The lead case on this issue is Eastex, Inc. v. NLRB (1978). In that case, the Supreme Court held or reaffirmed the proposition that Section 7 protects employees when they engage in otherwise protected concerted activities in support of employees of employers other than their own. The Court also made it clear that Section 7 protection may cover appeals to persons or entities that are not being solicited for support in their capacity as an employer, such as an appeal to a state legislature opposing “Right To Work” legislation, and an appeal to voters to elect representatives favorable to the employees’ concerns.

However, Justice Powell, in the majority opinion also wrote, “It is true, of course, that some concerted activity bears a less immediate relationship to employees’ interests as employees than other such activity. We may assume that at some point the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the “mutual aid or protection” clause.”

Following the murder of George Floyd, demonstrations broke out across the country, some of the mostly peaceful ones resulting in destruction and vandalism. The “discriminatees,” Nichols and King, worked at a bar in Birmingham, Alabama, which was forced to close during Covid. Then came the BLM protests, which forced closure because of the curfew imposed. The bar’s owners were not amused, which started a series of “interesting” texts.

On June 5, at 8:16 a.m. Michael Dykes sent the following text message to Amber Taylor and Robert Bagwell.

We should go up one or two dollars on everything until June 10. Call it a protest tax because all the idiots that went to the protest are responsible for us not being able to open normal hours. Any employees that went or are still going should resign. Mr. Floyd was a thug, didn’t deserve to die but honoring a thug is irresponsible.

Taylor posted this text on an employee group text, where it became accessible to other employees, including Lacey King and Erin Nichols. She was not directed to do so by either Dykes or Bagwell. These group text exchanges were accessible to Robert Bagwell, but not to Michael Dykes.

Lacey King posted Dykes’ message about raising prices by $2 during the curfew on Facebook. She described Dykes as the most hateful person I have ever met in my life. At 10:20 a.m. on June 5, King texted Dykes, stating, “I quit your stupid fucking bar. You Racists (sic) piece if (sic) shit.

Taylor texted; “I quit, but I think I got fired.”
Bagwell responded, “I’m not firing anybody.”
Taylor then posted: “I hate to bust your bubble girls but he’s firing us!.

At 9:24 a.m. on June 5, Dykes sent Erin Nichols a text that said, “you were scared two weeks ago of covid but you can go protest???”

At 10:39, after receiving the text from King, Dykes sent Nichols another text asking, “you quit too”? Nichols did not respond.

He sent the same inquiry to Amber Taylor a few minutes earlier, Taylor testified she did
not receive this text because she had blocked Dykes’ account. Later that day, Taylor sent Dykes a photo of her daughter, apparently accidently [sic].

King then sent Dykes a text stating that she was quitting and calling him other derogatory names, including accusing him of being a racist.

Isn’t managing employees fun? But I digress. In a remarkable display of reason, the Board concluded that BLM being primarily about police misconduct toward black people was too attenuated to enjoy Section 7 protection. Contrary to the contentions of the “discriminatees,” it was not about racial discrimination in the workplace, in general, or at this bar, in particular.

There is no connection between the BLM protests in this case and any concerns about racial injustice at Parkside Cafe or any other particular employer. In this record, there is no evidence that the BLM protests focused on any specific workplace issue festering in workplaces generally, e.g. racial discrimination in hiring. To find that the Act protects activity which by no stretch of the imagination can be related to the workplace, is to expand the scope of the Act far beyond that to which it has ever been applied before. Moreover, I doubt it was intended to reach such activity.

The consequences of such an expansion of the scope of the Act would logically forbid employers for prohibiting all sorts of divisive activity from their workplaces, which are at best tangentially related to the concerns of employees as employees.

What’s surprising about this ruling is that the NLRB has almost invariably found a way to hitch any “good cause” to protected concerted activity under Section 7. That they have finally found a line they wouldn’t cross is curious, but that it was attending protests for BLM is shocking. Maybe times really are a’changing.