January 16, 2019

NLRB Limits Definition of 'Concerted' Activities by Employees

The National Labor Relations Board (NLRB) will find a violation of federal labor law when employees are disciplined or discharged for engaging in protected concerted activities. The key element is that employees must be acting in “concert.” Until last week, an employee would be found to be engaged in protected concerted activity simply if he or she was complaining in a group setting. Not anymore. In a new decision, the NLRB held that individual griping is not concerted activity only because it is made in front of other employees. For there to be concerted activity, an employee must be truly seeking to initiate or prepare for group action.

The decision, Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), upheld an administrative law judge’s dismissal of a complaint accusing an employer of violating the National Labor Relations Act (NLRA) by terminating a JFK airport skycap for grumbling about an assignment for which he may not receive a tip.

In the 3-1 ruling, the NLRB found that the airport skycap’s single complaint about tips made to a supervisor in front of several colleagues was not concerted activity. As part of its ruling, the NLRB overturned its 2011 WorldMark by Wyndham decision, in which it found that a worker who lodged a complaint in a group setting was sufficient to qualify as concerted action.

In overturning WorldMark, the Board majority found that it wrongly conflated such complaints made in group settings. The majority instead looked to precedent from its mid-1980s Meyers Industries decisions, which held that an individual employee who raises a workplace concern with management is engaged in concerted activity if there is evidence of “group activities”—e.g., prior or contemporaneous discussion of the concern between or among coworkers—warranting a finding that the employee was indeed bringing to management’s attention a “truly group complaint," rather than a purely personal grievance.

Based on this precedent, the NLRB explained that to be concerted activity, an individual employee’s statement to management must either:

  1. Bring a truly group complaint regarding a workplace issue to management’s attention
  2. The totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action

The NLRB went on to state that “individual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun.” The NLRB also listed several factors that would tend to support a reasonable inference that in making a particular statement, an employee was seeking to initiate, induce or prepare for group action.

In a lengthy dissent, NLRB member Lauren McFerran rebuked the majority for misunderstanding “the workplace reality for tipped workers” by imposing “arbitrary restrictions on what constitutes concerted activity, ignoring workplace realities and the wide range of means by which employees might protest unfair conditions.”

This decision represents a reversal of prior NLRB decisions that the majority found were “impermissibly conflating the concepts of group setting and group complaints.” Indeed, practitioners will be keeping a watchful eye on future NLRB cases, as the majority signaled in a footnote that they want to review similar precedents that may conflict with Meyers—such as those in which the Board has deemed statements about certain subjects “inherently” concerted.

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