NLRB Divides Sharply on Employee Concerted Activity for “Mutual Aid or Protection”

by Proskauer - Labor Relations

In a complex, twenty-eight page opinion, a sharply divided NLRB has ruled that when an individual employee seeks assistance from fellow employees with respect to a violation under Title VII (or other workplace laws), the action is not only concerted but also presumptively for the purpose of mutual aid or protection, and thereby also covered by the National Labor Relations Act (“Act”). Fresh & Easy Neighborhood Market, Inc., 360 NLRB No. 12 (2014). This decision is important because it broadens the activities which are protected under the Act and potentially complicates employer investigations into allegations of sexual harassment or other conduct alleged to have violated a variety of federal, state and local workplace laws.

The heart of the legal dispute in the case is found in Section 7 of the Act, which sets out the protected rights of employees under the Act:

Employees shall have 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, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). [Emphasis added.]

For many years, the NLRB has held that under Section 7, there is a separate analysis for whether employee conduct was “concerted”, and if it was, whether it was ”for the purpose of... mutual aid or protection.”

The case here involved both questions. In summary, it involved an individual employee who felt that she was being sexually harassed by remarks directed at her that had allegedly been written on a “white board” by a manager. In order to preserve evidence of what was written on the white board before it could be erased, the offended employee copied it on paper and asked fellow employees who had seen the writing on the white board to sign her paper. This was presumably to preserve and establish collaborative evidence of what had been written on the white board. There was no evidence that the offended employee was seeking to initiate group action or solicit a common complaint from her fellow employees.

Following an investigation by the employer, and resulting actions with which the offended party was dissatisfied, she file an unfair labor practice charge and the General Counsel of the NLRB issued a complaint. As a threshold matter, the Administrative Law Judge ruled that the offended employee had neither engaged in “concerted activity” by seeking the signatures of her fellow employees, nor sought to make common cause to initiate any group action, such that there was no purpose of “mutual aid or protection.” Based on these determinations, the ALJ dismissed the complaint.

The NLRB reversed the ALJ in a 3-2 decision.  The NLRB majority, joined by one dissenting member, held that the offended employee did engage in “concerted” conduct by requesting the signatures of the other employees.  The sharper split was over the NLRB’s further finding that the offended employee’s “concerted” conduct was for “mutual aid and protection”.  Essentially, the Board majority held that because she was seeking protection from sexual harassment under a statute (Title VII) applicable to the employer and is employees, her conduct was inherently for the purpose of “mutual aid or protection”, and no further proof of that was required.  To the extent that Holling Press, Inc., 343 NLRB 301 (2004) is to the contrary on the “mutual aid and protection” issue, the Board overruled it.

Both of the dissenting members vigorously disagreed with the majority’s conclusion that taking action to vindicate individual rights under a workplace statute inherently constitutes ”mutual aid and protection”. The complexity of the facts and the discussion back and forth between the majority and the dissenters are far more than can be fully described in this blog. But aside from the legal analysis, both dissenting members noted that if seeking to vindicate rights under another workplace statue was presumptively for “mutual aid or protection”, then in many cases an employer’s investigation into the allegations would be freighted with all sorts of “process limitations” imposed under the Act.

Member Miscimarra’s dissenting opinion listed these bottom line practical problems in some detail:

Unlawful Interrogation. The NLRA broadly prohibits the questioning of employees regarding “protected” activities. Under my colleagues’ holding, the employer, though obligated  to conduct an investigation and take remedial action under substantive laws like Title VII of the Civil Rights Act of 1964, is prohibited under the NLRA from questioning employees—including the person who presented the complaint—about the “protected” activity.

Unlawful Surveillance. The NLRA prohibits employer surveillance of “protected” activities, as well as comments or actions that create the impression of surveillance. Yet, employee complaints often involve disputes over what occurred or was communicated by or between employees. Under my colleagues’ holding, fact-gathering regarding such disputes will become difficult or impossible, because the NLRA renders unlawful most video or audio surveillance, email system searches, and similar investigative efforts regarding “protected” conduct.

The Right to “Refrain From” Protected Activity. If particular conduct is “protected,” Section 7 affirmatively protects the right of employees to “engage in” the conduct and to “refrain from” engaging in the conduct. Thus, if an employee’s individual complaint involves “protected” conduct, the complaining employee or co-employee witnesses may invoke an NLRA-protected “right” to “refrain from” answering questions and providing relevant information, even if the relevant claim involves a sexual assault associated with a sex harassment complaint, for example, or a work-related injury or fatality implicated in an OSHA complaint. work-related injury or fatality implicated in an OSHA complaint.

Difficulty Knowing Which Individual Complaints Are “Protected.” Under my colleagues’ holding, Section 7 will cover all individual complaints that implicate statutory rights, but only if there is “concerted” activity by two or more employees. Yet, because the NLRA prohibits interrogation about “concerted” activity, employers cannot lawfully make inquiries sufficient to determine which individual complaints are covered by Section 7, and which are not.

Large Number of Individual Complaints Affected. Co-employees predictably will be the most frequent source of information about employment-related complaints, and their involvement may occur in numerous ways and at different times. Therefore, under my colleagues’ holding, nearly every investigation involving individual complaints will present difficult questions about whether or when the NLRA process-based restrictions are triggered.

Inability to Establish Standard Complaint-Handling Procedures. Conventional cases involving “protected” activity often give rise to difficult questions about whether the employer has knowledge of the activity. Yet, as noted above, the Act prohibits employers from making inquiries about “protected” activity, so employers cannot readily ascertain whether or when the NLRA applies to individual complaints, even if they exclusively invoke non-NLRA rights. Therefore, under my colleagues’ holding, employers will be unable to adopt a standard process for handling and investigating individual complaints unless they treat every individual complaint as being “protected” under the NLRA.

Slip op. at 21 (emphasis in original; footnotes omitted).

That said, there was some possible good news in the decision, as all the NLRB members agreed that two instructions given by the employer to the offended employee during the investigation of the incident did not violate the Act.  First, the employer had asked the offended employee why she had requested her fellow employees’ signatures on the paper on which she had copied the offended white board material. The employer also requested that the offended employee not take any more witness statements herself, pending completion of the employer’s investigation; however, the employer specifically stated that the offended employee could discuss the matter with her fellow employees and seek their assistance as witnesses.

In many instances, such directives or questions might be found to violate the Act as an interference with the employee’s right to seek the help of fellow employees. Here, however, the NLRB found that because the employer’s question and instruction was narrowly tailored to protect the integrity of the investigation, and was accompanied by the assurances, that there was no interference with protected rights that would violate the Act. Unfortunately, the majority noted several times that its holding on these issues was limited to “the facts of this case”. This came as cold comfort to the dissenters, who pointed out that no employer could be sure that similar questions or directives under the facts of a future case would not be found unlawful, even as they try to carry out their responsibilities under a host of other federal, state and local workplace laws.


As Member Miscimarra pointed out in his dissent, over seventy years ago the Supreme Court stated:

[T]he Board has not been commissioned to effectuate the policies of the [Act] so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.

Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (emphasis added).

The NLRB plays an undoubtedly important role in federal workplace policy that has stood the test of time. But, as the decision discussed in this blog illustrates, for some time now the NLRB has been reluctant, to the point of refusing, to balance its important role in enforcing rights under the Act with the rights and enforcement processes set out under other federal, state and local laws. The refusal to strike this balance can unnecessarily complicate employer compliance efforts under those other federal, state and local workplace laws, and potentially diminishes the effectiveness of those other laws as well as the Act itself.


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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