Hunton Employment & Labor Perspectives

In Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019), a number of paid staff of the nonprofit advocacy group joined a petition circulated by Amnesty’s unpaid interns, seeking compensation of their volunteer work.  In response to the petition, the director of the organization made statements that she was “disappointed” that the signers of the petitioners had not availed themselves of the organization’s open door policy to discuss the matter with her and the executive team before signing the petition, and that she did not think the petition was “appropriate” as it was “litigious” and “adversarial.”

The administrative law judge, finding that the paid staff had engaged in activity protected by Section 7 of the Act when they joined the unpaid interns’ petition, concluded that the director’s statements violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by coercing employees in the exercise of their Section 7 rights.

In a unanimous decision, the Board reversed the administrative law judge’s decision.  First, the Board found that the unpaid interns were not “employees” under the definition of that term contained in Section 2(3) of the Act. The Board reasoned that the unpaid interns were not employees because they “did not receive or anticipate any economic compensation from the [organization].”  Accordingly, the Board reasoned that because the paid staff employees were advocating solely for the nonemployees’ effort to be paid, the activity of the paid staff did not constitute “other mutual aid or protection” within the meaning of Section 7. Put another way, the actions of the statutory employees in support of benefits sought only by those who were not statutory employees, is not conduct protected under the Act.

Second, and in any event, the Board disagreed with the administrative law judge’s assessment that the director’s statements violated Section 8(a)(1), citing to Section 8(c) of the Act, which provides that the “expressing of any views, argument, or opinion” does not constitute evidence of an unfair labor practice so long as the expression did not contain threats of reprisal of force or promise of benefit.  Given the context of when and how the petition was presented to the director, including the fact that the organization had just previously announced plans for a paid internship program, the Board did not find that the director’s statements contained a threat of reprisal or suggestion that the employees were being disloyal.  Rather, the Board noted that the director’s statements only conveyed her genuine disappointment and frustration at the employees’ lack of communication and use of the organization’s open-door policy.

The Amnesty International decision recognizes that unpaid interns are not statutory employees under the NLRA. This holding is advantageous especially to employers in the nonprofit sector who rely heavily on unpaid interns. However, this policy also has significant implications on actions that statutory employees may take on behalf of other workers and whether those actions would be protected by the NLRA.