NLRB Defends Speech Supporting Racial Discussions - American Society of Employers - Anthony Kaylin

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NLRB Defends Speech Supporting Racial Discussions

The National Labor Relations Board Office of General Counsel issued an Advice Memorandum with the position that group discussions in the workplace concerning racial bias are protected concerted activity under Section 7 of the National Labor Relations Act (NLRA), and employees who engage in such activity are protected from employer retaliation.  This memo applies to both union and nonunion employees.

The situation discussed in the memo concerned an unfair labor practice charge brought by physician Aysha Khoury, who was hired in 2020 as a faculty member at the Kaiser Permanente Bernard J. Tyson School of Medicine in Pasadena, California. The school was new, formed in 2016.  In the wake of publicized police shootings of African Americans, Khoury engaged in group discussions with a group of students and fellow faculty members to discuss racial representation and racial bias in the medical field.  The meeting also discussed the insensitivity of an email sent by the dean concerning a recent shooting incident near the school. 

Nine hours after the meeting, the administration suspended Dr. Khoury from her teaching duties, pending an investigation into her classroom activities. Following the investigation, the Kaiser Medical Group reinstated her as a clinical physician, but KPSOM did not reinstate her to the faculty.  Khoury then tweeted about what was going on with her discussions, her suspension, and her firing.  The school then informed her that she would not be reappointed to the faculty.

After her termination, Khoury filed a Charge of Discrimination with the EEOC and filed a lawsuit in federal court, which the parties settled in January 2023. Khoury is currently a faculty member at Morehouse School of Medicine in Atlanta.

Going back to the memorandum, the NLRB stated that the school had animus to suspend and terminate the faculty appointment in violation of the NLRA.  Specifically, memo stated:

We conclude that the Employer violated Section 8(a)(l) because the Charging Party's classroom discussion about issues of race faced by Black faculty and students, as well as systemic racism in medicine, was inherently concerted and was for mutual aid or protection. Further, the Charging Party's tweets were protected concerted activity because they discussed terms and conditions of employment regarding racial disparities in medicine faced by medical professionals, sought the assistance of others to improve working conditions in medicine, and encouraged others to fight for racial equality and justice in the workplace. These tweets were also the logical outgrowth of the classroom discussion. The above protected concerted activity was a substantial and motivating factor that led the Employer to suspend and ultimately terminate the Charging Party.

The concerted activity that Dr. Khoury had participated in was for the benefit of all employees since it was a discussion regarding such basic issues as wages, benefits, or work schedules that “seek to initiate, induce, or prepare for group action, or statements directed toward management communicating a truly group complaint.”  In this situation, her leading discussion involved “working to end systemic racism, including its impact on the Employer [which] inures to the benefit of all employees, [and] the discussion (and tweets) was for mutual aid or protection.”

As for the tweets, even though no employee was responding to them, the memo pointed out that “it is immaterial that there is no evidence that any of the Charging Party’s co-workers interacted with the tweet.” The Office of General Counsel concluded that because statutory employees engaging in concerted activity include any employee, and is not limited to the employees of a particular employer.   Further, the tweets were not considered mere griping because they contemplated future group action.

Unfortunately, this action should lead to a similar result as well for those who disagree with the sentiments of Dr. Khoury and express themselves as well.  Employees who may be terminated by an organization if they disparage the Black Lives Matters movement (BLM) while discussing the impact of BLM on their employment conditions without belittling any employee because of race should also be protected Section 8(a)(l). 

Therefore, HR, whether a union or nonunion employer, needs to recognize speech that is, up to a point, free speech protected by the NLRA.  HR can establish policies that go toward political speech, but it is no guarantee that would be accepted by the NLRB.  It is recommended that employers discuss with their legal counsel and update their workplace speech related policies.   Once established, HR needs to train all employees on the policies.


Source:  Phelps Dunbar LLP 3/2/23, DirectEmployers 3/6/23


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