News & Updates: NLRB Narrows Definition of Concerted Activity under Section 7 of the National Labor Relations Act

A recent decision from the NLRB, Alstate Maintenance LLC, 367 NLRB 68 (2019), significantly narrowed the definition of “concerted activity” under Section 7 of the National Labor Relations Act.

Protected “concerted activity” is a cornerstone of the NLRA, providing protection for actions taken on behalf of a group of employees. The Board, under the Obama administration, had greatly expanded the definition of what constitutes “concerted activity,” ruling in Worldmark by Wyndham, 356 NLRB 765 (2011) that virtually every complaint about working conditions made in front of coworkers was “initiating group action,” and was therefore protected. The Board in Alstate reversed that decision and clarified that for complaints to be concerted activity, either: (1) the individual employee’s statement must bring a truly group complaint regarding a workplace issue to management’s attention, or (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.”

Background

This case concerned skycap employees at JFK, who are responsible for helping air travelers with their bags. When asked to help on a job, a skycap employee, Trevor Greenridge, complained to his manager about the tipping habits of that group, stating “we did a similar job a year prior and we didn’t receive a tip for it.” He and his coworkers subsequently walked away from the job. The whole group was later let go.

After a complaint was filed, an administrative law judge found that the remark about tipping habits was not concerted activity, thus there was a valid basis for the termination. The decision was appealed, with the General Counsel arguing that Greenridge had engaged in protected concerted activity when he made a group complaint about tips in front of other employees. The NLRB disagreed.

Reaffirming Myers Industries

The NLRB made clear that the applicable standard for determining whether a complaint is protected concerted activity is that articulated in the 1980s Meyers Industries decisions. To find an employee’s activity to be “concerted,” it must “be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” This encompasses the efforts of an individual who may not be a designated spokesman, depending on whether the facts show that the individual is truly endeavoring to bring a group complaint to management. A verbal statement made prior to organization may also be protected if: (1) it was engaged in with the object of initiating or inducing or preparing for group action, or (2) it had some relation to group action in the interest of employees. In other words, for activity which is “just talk” to be protected, it must be talk looking toward group action.

In reaching its decision, the NLRB explicitly overruled the Obama-era decision in Worldmark by Wyndham. Wyndham adopted the blanket rule that “an employee who protests publicly in a group meeting is engaged in initiating group action,” rather than the fact-intensive inquiry envisioned by Meyers Industries. The Board in Alstate rejected the Worldmark standard, emphasizing that not every complaint made in a group setting is on behalf of a group or meant to initiate group action, and those that are not, are not protected.

The Board identified factors which would support a finding that a public complaint is protected concerted activity:

1. the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment;
2. the decision affects multiple employees attending the meeting;
3. the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
4. the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and
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.

It also noted that other clear evidence that a statement was made to initiate group action, such as an express call for colleagues to act collectively, would support a finding of “concertedness.”

Applying this standard, the NLRB found that Greenridge had not engaged in concerted activity. Notably, there was no evidence that tipping habits of any groups had been a topic of conversation before this statement. On top of that, Greenridge himself had stated that his comment was an offhand remark, which was not intended to initiate group action. As a rule of thumb: “where a statement looks forward to no action at all, it is more than likely mere griping,” and is thus not protected concerted activity.

Takeaways

Employers have some relief in knowing that not every complaint made in front of a group will be treated as “concerted activity.” This may provide more leeway in taking necessary disciplinary actions. Employers should consider the factors listed above in determining whether a complaining employee engaged in protected concerted activity, or whether a gripe was just a gripe. But given the fine lines that exist in analyzing such actions, employers should also proceed with caution.