Skip to main content

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.



Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more