NLRB Retreats From Expansive Definition Of “Concerted Activities,” Gives Employers More Leeway

McCarter & English, LLP

McCarter & English, LLP

The National Labor Relations Act (NLRA or the Act) gives employees in the private sector the right to form and join unions and to collectively bargain with employers. It also gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For some time, the National Labor Relations Board (NLRB) has been expanding the scope of such “concerted activities” for “mutual aid or protection” into more and more areas of the non-union employment relationship. On January 11, 2019, the now more pro-employer NLRB under the Trump administration took a step toward decisively rejecting that expansion, overruling a 2011 decision that had allowed a certain type of individual activity to be deemed “concerted” for purposes of the Act. The NLRB also indicated that it was actively looking for cases in which to overturn other decisions that weakened the requirement that two or more employees be involved before the Act applied. While this new decision should reduce the number of unfair labor practice charges faced by employers, the core NLRA protections remain in place, and employers should be mindful of how they do, and do not, limit employer discretion.

Most employers think of the NLRA, if they think about it at all, as a law that governs unionized employers. But the Act covers non-union private sector employers as well, particularly in regard to the exercise of “concerted activities for the purpose of … mutual aid or protection.” Generally, for action to be “concerted,” it must involve more than one employee. For example, if three non-union employees together went to the company president’s office and protested the firing of a co-worker, the employer could not discipline those employees for that conduct: action by the three employees together is “concerted” and a protest about discipline is for “mutual aid.” In contrast, a single employee who approached the company president alone complaining about a warning he received would not qualify as “concerted” activity, and thus the NLRA would not apply to that conduct.

The NLRB has over the years created exceptions to the general rule that “concerted activity” requires the involvement of two or more employees in order to be covered by the NLRA. For example, in the 2011 case revisited this month (WorldMark by Wyndham), the NLRB held that an employee who protests publicly in a group setting is deemed to be initiating group action even if that employee had not communicated with other employees and no other employees joined in his protest.

In Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019), the NLRB rejected that broad interpretation set forth in WorldMark and instead applied the rule that “concerted activities” generally required participation by more than one employee. Alstate involved baggage handlers – called “skycaps” – working at JFK International Airport. A supervisor asked four skycaps to assist with the bags from a college soccer team, and one responded that “we did a similar job a year prior and we didn’t receive a tip for it.” When the bags arrived, the four skycaps walked away, and the supervisor got others to assist with the bags. The employer terminated the skycap who made the comment, specifically noting that he had made the negative comment in front of his co-workers as well as managers for an airline carrier and the entity that managed the airport terminal.

Under the NLRB’s 2011 ruling, the comment by the skycap to management in front of other employees concerning compensation could have been deemed “concerted” and thus protected under the NLRA. The NLRB ruled in Alstate, however, that the 2011 case had been wrongly decided, and that there is no presumption that an individual’s “gripe” about work, even if made in front of co-workers, is “concerted activity.” The NLRB held that in this case it was not protected, and dismissed the complaint.

The NLRB did hold that a statement by one employee in the presence of other employees could be considered “concerted” under very specific circumstances: the “individual’s statement to a supervisor or management must … bring a truly group complaint regarding a workplace issue to management’s attention, or 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.” In assessing the latter “totality of the circumstances” scenario, relevant factors include whether (1) the employee’s statement was made at a meeting called by the employer to announce a decision affecting wages, hours or other terms and conditions of employment; (2) the decision affected multiple employees in attendance; (3) the speaker protested the decision (as distinguished from simply asking questions); (4) the protest was about the effect on the workforce and not solely about the individual speaker; and (5) the meeting presented the first opportunity to address the decision, so that the speaker did not have the opportunity to discuss the issue with other employees ahead of time.

The NLRB further indicated in a footnote that it would “be interested in reconsidering” several other cases that had expanded the concept of “concerted” to include the actions of a single employee. The NLRB previously held that certain topics – such as wages, work schedules and job security – were so “inherently” concerted that an employer who disciplined an employee for raising the concern would violate the NLRA even if no other employee were involved. It is likely that the NLRB will have such an opportunity at some point in the near future.

Despite this employer-friendly ruling, employers need to remain aware of the rights employees still have under the NLRA in order to avoid unintentional liability. Rules that restrict what employees can discuss among themselves – wages and other working conditions, for example – remain unlawful, and the current NLRB has ruled against employers multiple times in the past few months on routine NLRA violations. As the rules under the NLRA and other federal and state employment statutes evolve, employers should consider revising their policies to reflect the changing landscape.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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