NLRB Narrows Definition Of "Concerted Activity"
Continuing its reassessment of confusing and/or employee-friendly labor law standards, the National Labor Relations Board (“NLRB” or “Board”) recently held, in Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019), that an employee does not engage in “concerted” activity protected under the National Labor Relations Act (“NLRA”) simply by using the word “we” when raising a work-related concern in a group setting.
Criticizing the lack of clarity in its jurisprudence on the definition of “concerted” activity, the Board also outlined several key factors it will consider moving forward in determining whether an employee has raised a protected group complaint or an unprotected individual “gripe.”
This new guidance provides a helpful framework for employers, who, under the Board’s previous holdings, have puzzled over how to determine whether an employee’s complaints to management qualify as protected concerted activity.
In general, Section 7 of the NLRA gives unionized and non-unionized employees alike a right to engage in protected concerted activity – that is, actions aimed at employees’ mutual aid and protection, and relating to the terms and conditions of their employment. An employer that discharges an employee for actions falling within this rubric can be ordered to reinstate the employee with back pay.
The requirement that such activity be “concerted” is crucial. Purely individual protests, aimed only at benefiting the employee and not co-workers as well, are not protected under Section 7. Drawing this line, however, has often proven difficult, both for the Board and for employers seeking to understand their rights and responsibilities.
The employee in Alstate Maintenance, Trevor Greenridge, worked as a skycap for a ground services contractor at John F. Kennedy International Airport in New York City. As a skycap, Greenridge was responsible for assisting arriving passengers with their luggage outside the airport terminal entrance.
One day, Greenridge was working alongside three other skycaps when his supervisor directed him to assist an arriving soccer team with their equipment. Greenridge replied, “We did a similar job a year prior, and we didn’t receive a tip for it.” When Greenridge and his fellow skycaps were waved over to help, they walked away. Greenridge was fired for his comment and for “customer indifference.”
In response, Greenridge filed an unfair labor practice charge under Section 8(a)(1) of the NLRA, alleging that he had been discharged for engaging in protected concerted activity.
The issue before the Board was whether Greenridge’s statement – “We did a similar job a year prior, and we didn’t receive a tip for it” – amounted to protected concerted activity.
Under two seminal Board cases, Meyers Industries, 268 NLRB 493 (1984) (Meyers I) and Meyers Industries, 281 NLRB 882 (1986) (Meyers II), a single employee’s concern raised to a supervisor or management may be deemed concerted activity, if (i) the concern is “a truly group complaint,” rather than a “purely personal grievance,” or (ii) the individual is making an effort to “induce group action” in the interest of employees.
General Counsel for the NLRB argued that Greenridge’s comment satisfied the Meyers standard because it was made in a group setting and included the word “we.” In making this argument, the General Counsel relied on a 2011 case, WorldMark by Wyndham, 356 NLRB 765 (2011), in which the Board held that employees who protest publicly in a group setting are, by definition, “engaged in initiating group action.”
A three-member Board majority rejected this argument, finding that Greenridge’s comment was not concerted activity. The majority reasoned that there was no evidence that tipping had been a topic of conversation among the skycaps, and concluded that Greenridge’s remark was an offhand gripe that did not look forward to any group action.
In so holding, the Board specifically rejected the WorldMark decision as having “unmoored itself” from the standard set forth in Meyers I and II. Thus, the Board overruled WorldMark’s holding that a group setting alone is sufficient to make a single employee’s comment concerted. The Board pointed out that “many complaintsvoiced by individual employees in a group setting are spoken ‘by and on behalf of the employee himself.’”
The Board then announced that in future cases, it would consider the following nonexclusive set of factors in assessing whether an employee’s statement to a supervisor was “concerted”:
(1) The statement was made in a meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment;
(2) The decision affected multiple employees attending the meeting;
(3) The employee who spoke up did so to protest or complain about the decision, and not merely (as in WorldMark) to ask questions about how the decision had been or would be implemented;
(4) The speaker protested or complained about the decision’s effect on all or some portion of the workforce, and not solely about its effect on the speaker himself or herself;
(5) The meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.
The Board emphasized that not all of these factors would need to apply for activity to qualify as concerted, and that, in some instances, additional factors could come into play as well.
Implications For Employers
The Board’s decision in Alstate Maintenance appears to provide greater clarity to union and non-union employers alike, by identifying specific factors for assessing whether an employee’s complaints about an employer’s policies or actions constitute protected concerted activity or unprotected, individual griping.
As a hint of where the Board may go next on this issue, the Board majority also signaled, in a footnote, its interest in reconsidering a current line of precedent holding that an employee’s statements about certain topics, like wages and work schedules, are “inherently concerted”—irrespective of the circumstances in which they are made.
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If you have any questions about the Alstate Maintenance decision or the likely direction of future Board holdings in this area, please feel free to contact one of our experienced labor attorneys.