In today’s news and commentary, NLRB advice memo narrows political protest protections and NLRB asks federal appeals court for deference.

In an advice memorandum issued on August 30, 2026, the NLRB’s Advice Division strictly interpreted protections for workers engaging in political protest, requiring a close relationship between a protest’s goals and workers’ “mutual aid and protection.” In 2023, workers associated with No Azure for Apartheid and No Tech for Apartheid began sharing posts and links about the war in Gaza through company emails and on company chat groups or chat boards. In 2024, at least one worker invited co-workers to a protest on Microsoft’s campus, drawing “a large crowd.” Microsoft fired the workers following this incident. The memo advises that the protest’s goals — cutting Microsoft’s ties with the Israeli government, raising awareness of the conditions in Gaza, and raising humanitarian funds — where too attenuated from “mutual aid and protection” to be protected by the NLRA. While such a memo, coming out of the General Counsel’s office, is not binding, it indicates how the General Counsel is likely to approach an issue. In fact, this advice memo indicates a departure from the Biden’ NLRB’s 2024 decision in Home Depot that protected a worker’s BLM display.

On Tuesday, September 1, the NRLB asked the entirety of the D.C. Circuit federal court of appeals to review the decision of a three-judge panel that struck down the NLRB’s doctrine prohibiting successor companies from not recognizing an existing union. This case continues the fall-out from the Supreme Court’s 2024 decision in Loper Bright that ended courts’ default deference to administrative agencies on a variety of questions. The three-judge panel decided that they do not need to defer to the NLRB’s rule that prohibits a successor company, i.e., where a second company purchases a workplace from the original company, from withdrawing recognition from the already-existing union at that workplace. The judges rooted their decision in the new authority granted to them by Loper Bright, saying that the successor bar is such an “important policy choice” that the agency determination deserves no deference. The panel’s decision was written by two Trump-appointed judges, with a dissent authored by a George H.W. Bush appointee. The entire D.C. Circuit is a majority Democratic appointees.