The Division of Advice is a segment of the Office of the General Counsel within the National Labor Relation’s Board (NLRB) that answers questions posed by the agency’s network of regional offices on cases that raise difficult issues or implicate potential changes to board precedent. The Division of Advice recently concluded that Microsoft did not violate the National Labor Relations Act (“NLRA”) when it terminated two employees for holding an unauthorized protest on company property concerning Microsoft’s business relationship with the Israeli government. The Division concluded that the protest was not protected concerted activity because its objectives were not sufficiently connected to employees’ terms and conditions of employment.
The dispute arose from an employee-led campaign called No Azure for Apartheid, which sought, among other things, to have Microsoft terminate its Azure cloud-computing contracts with the Israeli government and protect pro-Palestinian speech and fundraising on company platforms. Microsoft had previously taken no action against the employees involved in launching the campaign or circulating its petition, although it had disciplined two employees for offensive internal comments unrelated to workplace concerns.
Several months later, one employee sent a company-wide calendar invitation promoting an event at Microsoft’s Redmond campus that was organized by No Tech for Apartheid, an outside organization. The invitation encouraged employees to participate in a walkout, vigil, speaker series, and fundraiser opposing the technology industry’s support for what the invitation characterized as Israel’s “apartheid and genocide.” Microsoft security informed the organizers that the event could not be held on company property because it was advertised to nonemployees, was not authorized by Microsoft, and was sponsored by an outside organization. Despite repeated requests to relocate to nearby public property, the organizers proceeded with the protest on campus. Two employees were subsequently terminated for violating company policy and failing to comply with security directives.
The Division of Advice concluded that the terminations were lawful because the protest was not undertaken for employees’ “mutual aid or protection,” as required for protection under Section 7 of the NLRA. Although concerted activity can remain protected even when other objectives predominate, the Division found that the protest’s principal objectives were to pressure Microsoft to end its ties with the Israeli government, raise awareness about conditions in Gaza, and raise funds for humanitarian relief, and not to improve employees’ working conditions.
The Division acknowledged that the campaign’s petition included a demand concerning employee safety and the protection of pro-Palestinian speech on Microsoft systems. However, it concluded that including that workplace-related demand in a broader petition was insufficient to establish that the protest itself had the objective of improving employees’ working conditions. In other words, employees could not transform an otherwise unprotected political protest into protected concerted activity simply by linking it to a broader campaign that also contained workplace concerns.
The Division also rejected the argument that Microsoft’s relationship with Israel affected employees’ terms and conditions of employment because public reaction to that relationship could harm Microsoft financially and ultimately affect employees’ compensation or benefits. The Division characterized that connection as too attenuated, explaining that employee efforts to influence the employer’s overall business direction or managerial policies generally fall outside Section 7 merely because those decisions could ultimately affect the company’s finances.
Finally, the Division found insufficient evidence that Microsoft’s stated reasons for the terminations were pretextual. It noted that Microsoft had not disciplined the employees for their earlier involvement in the No Azure campaign or distribution of its petition and that the disciplinary actions at issue concerned the unauthorized protest and failure to comply with security directives. The Division therefore advised the NLRB Regional Office to dismiss the unfair labor practice charge absent withdrawal.
Note: This Advice Memorandum is not binding but relevant for private schools because the NLRA can protect employees who act together regarding workplace concerns, even when the underlying issue also involves political or social advocacy. The Division’s analysis, however, emphasizes that there must be a meaningful connection between the particular activity at issue and employees’ terms and conditions of employment; a broader campaign’s inclusion of workplace-related concerns does not necessarily make every protest or advocacy effort associated with that campaign protected.