Have you ever felt that reading the decisions of the National Labor Relations Board is a lot like watching a tennis match? The decisions on key workplace issues go back and forth, back and forth, and you are just stuck watching. The good news, at least, is that lately, employers have been holding serve. Recently, the National Labor Relations Board served up another decision that provides some clarity and helpful guidance for employers.
In Alstate Maintenance LLC, the Board clarified the definition of “concerted” under the National Labor Relations Act, and reiterated that individual employee complaints or gripes are not “concerted” activity under the Act. Before we look at Alstate, let’s take a step back and examine what Section 7 of the Act protects.
Section 7 may be the Act’s most important provision, and it is certainly the area that gets the most attention and litigation. Section 7 provides employees with the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In order to be protected, employee activity must be “concerted” and engaged in for the purpose of “mutual aid or protection.” These terms have been examined extensively by the Board and the courts.
The definition of “concerted” for example, has been argued about countless times. For nearly three decades, the Board used a consistent standard to review whether an employee’s activities were “concerted.” The standard is known as the Myers Industries test, and it is named after a series of cases that date back to the 1980s. Essentially, under Myers Industries, concerted activity is defined as (1) group action or action on behalf of other employees; (2) activity seeking to initiate or prepare for group activity; or (3) bringing a group complaint to the attention of management. Individual gripes or complaints were not protected.
The Board modified the last part of this test in 2011 when it issued its decision in WorldMark by Wyndham, which held that lodging a complaint in a group setting and using the term “we” qualified as concerted activity. This decision essentially held that an individual complaint in a group setting qualified as “concerted” activity.
Alstate reversed WorldMark by Wyndham and reinstated the Myers Industries test set forth above. In Alstate, the Board said that a complaint in a group setting, alone, is not enough to satisfy that test. The Board clarified that for an employee’s statement to qualify as a group complaint, the statement must be a complaint regarding a workplace issue and the circumstances must make it clear that the employee was seeking to initiate or induce group action. In other words, an individual gripe does not qualify as concerted activity, even if it takes place in front of other employees.
We are hopeful that the Board will continue to issue employer-friendly decisions and guidance, and we will be sure to continue to provide you with updates on these decisions and other key developments.
