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NLRB Clarifies What Constitutes Concerted Protected Activity Under the NLRA


Earlier this month, the National Labor Relations Board (“NLRB”) issued a 3 - 1 decision in Alstate Maintenance, LLC in which the scope of what constitutes protected concerted activity under the National Labor Relations Act (“NLRA”) was narrowed.  Under Section 7 of the NLRA, employees have a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  However, the question of what constitutes protected concerted activity has become somewhat of a blurred line over the years as the NLRB has issued decisions which have made it difficult to differentiate between protected group action and unprotected individual action.  Notably, a 2015 decision in Whole Foods Market held that “activity by one individual is deemed concerted activity if undertaken in an effort to enforce the provisions of a collective bargaining agreement or in order to initiate or induce group action.”

In Alstate, a dispute arose over comments made by Trevor Greenbridge (“Greenbridge”), a skycap at JFK International Airport.  While working with three other skycaps outside one of the airport entrances, a supervisor approached Greenbridge and asked him to assist with a soccer team’s luggage.  Greenbridge remarked “We did a similar job a year prior and we didn’t receive a tip for it.”  Greenbridge was subsequently terminated, in part, for his comment about not being tipped.  A complaint was subsequently filed on Greenbridge’s behalf which argued he was unlawfully terminated in violation of the NLRA for engaging in protected concerted activity when he expressed concerns about not being tipped for a job assignment.  The Administrative Law Judge dismissed the complaint.  

In reviewing the matter, the NLRB affirmed the dismissal, relying in part upon two decisions from the 1980’s, Meyers Industries I and Meyers Industries II.  In those two decisions, the NLRB held that an individual employee that raises a workplace concern with a supervisor is engaged in protected concerted activity if there is evidence of actual “group activities”.  To meet this standard, there must be evidence of “prior or contemporaneous discussion of the concern between or among members of the workforce - warranting a finding that the employee was indeed bringing to the management’s attention a ‘truly group complaint,’ as opposed to a purely personal grievance.”  

In Alstate, the NLRB found that Greenbridge’s statement did not satisfy the standard set in Meyers.  In reaching this conclusion, the NLRB deviated from the Whole Foods Market’s reliance on the intent of the speaker (in this case Greenbridge) and instead relied on the overall effect and impact of the conduct.  Quite simply, making comments in front of coworkers or in a group setting, alone, does not make a statement concerted activity.  Instead, the totality of the circumstances must be considered to support a reasonable inference that in making the statement, the employee was seeking to initiate, induce, or prepare for group action.  As a result, Greenbridge’s comment was held to be a personal gripe rather than a group complaint brought to the attention of the supervisor.  Even though Greenbridge made his statement in front of coworkers and used the word “we” rather than “I”, that alone did not make the comments concerted activity as there was no evidence that Greenbridge was seeking to initiate, induce, or prepare for group action.  Further, the NLRB found there was insufficient evidence to establish that Greenbridge was acting in the interest of mutual aid or protection when he uttered his comment to the supervisor.  Consequently, his termination was found to not be in violation of the NLRA.

It is worth noting that the NLRB’s decision here overruled a 2011 decision in WorldMark by Wyndham in which the NLRB found “an employee who protests publicly in a group meeting is engaged in initiating group action”, even if that protest is made by and on behalf of the employee himself/herself.  What changed?  In part, the NLRB has taken on more of an employer friendly tilt in recent years, due in part to a Republican President taking office and nominating more employer friendly NLRB members.  I would expect similar rulings from the NLRB as the scope of what constitutes concerted protected activity is likely to be further narrowed with subsequent cases.



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