Although the National Labor Relations Act was initially established to assist unions in organizing employees, its scope is much broader as it also protects employees’ rights to engage in “protected concerted activity.” The NLRB’s interpretation of what constitutes protected concerted activity has fluctuated over the years and, in particular, under the Obama administration it expanded significantly beyond its original scope.  In the Board’s recent decision of Alstate Maintenance, LLC the Board acknowledged a need to reset the standard as set forth in the Meyer’s Industries cases from the 1980’s, in particular, with respect to the scope of what is considered concerted activity.  In Meyers I, the standard was specified that in order to be concerted such activity must “be engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself.”  In other words, individualized gripes or concerns are not sufficient.  And while this definition will no doubt be litigated further, the Board’s analysis in Alstate Maintenance, LLC provides guidance on what constitutes the current Board members’ understanding of concerted activity, which is a return to a more reasonable interpretation.

In Alstate Maintenance, LLC, a skycap employee (“Greenridge”), while working with three other skycaps, was informed by a supervisor that they were to assist with a soccer team’s equipment that was approaching the airport.  The single employee then remarked, “We did a similar job a year prior and we didn’t receive a tip for it.”  When the van arrived the skycaps walked away and did not provide assistance initially; but after the passengers entered the facility some of the skycaps began assisting them.

Importantly, the General Counsel’s case never alleged that the skycaps “walking away” from the van upon its arrival was part of the purported concerted activity.  Rather, the General Counsel merely argued that the single employee’s statement constituted protected concerted activity.  As was stated in the post-hearing brief by the General Counsel: “ . . . Greenridge was discharged because he engaged in protected concerted activity when he raised concerns to his direct supervisor in front of his coworkers about the possibility that he and his coworkers would not receive a tip for a job assignment.”  Contrary to the General Counsel, the Board found that there simply was not a group complaint brought to the attention of management.  There was no evidence, for example, that the tipping habits of soccer players had been a topic of conversation among the skycaps prior to Greenridge’s statement.  Nor did Greenridge’s use of the word “we” supply the missing group activity evidence.  Indeed, the Board agreed with the Administrative Law Judge, who credited Greenridge’s testimony in this regard, finding that his remark was simply an off-hand gripe about his belief that French soccer players are poor tippers.  The Board also discounted the General Counsel’s position that the comment qualifies as concerted activity because Greenridge made it in a group setting in the presence of his coworkers and his supervisor and used the first person plural pronoun “we”.

The Board distinguished a number of other cases in its decision, citing back to Meyers II, which required “record evidence that demonstrates group activities in order to find an individually urged complaint as a truly group complaint and that such an analysis must be based on the totality of the record evidence.”  In particular, the Board stated that

“the fact that a statement is made at a meeting in a group setting or with other employees present will not automatically make the statement concerted activity. Rather to be concerted activity an individual employee’s statement to a supervisor or a manager 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.”

The Board even provided a checklist for further review of what might constitute concerted activity in these circumstances: 1) was the statement made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; 2) did the decision effect multiple employees attending the meeting;  3) did the employee who speaks up and responds to the announcement do so to protest or complain about the decision, not merely to ask questions about how the decision had been or will be implemented;  4) did the speaker protest or complain about the decisions’ effect on the workforce generally or some portion of the workforce and not solely its effect on the speaker himself; and 5) did the meeting present the first opportunity for employees to address the decision so that the speaker had no opportunity to discuss it with other employees beforehand.

What is also important is that, in a footnote, the Board stated that while they did not reach the issue in this case, they believed that other prior cases in this area arguably conflict with Meyers, including those in which the Board had deemed statements about certain subjects being “inherently concerted.”  Hence, it would appear that this line of cases is also ripe to be on the chopping block for further review and restriction in the days going forward.

Conclusion

Non-union employers are often blindsided by the concept of and prohibitions relating to concerted protected activity. Given the Board’s historical expansion of the concept over time, it is often difficult to recognize in the moment that an employee is engaged in concerted activity.  But the Alstate Maintenance, LLC decision should assist employers by making them aware of this often-forgotten protection under federal Law and provide additional guidance to employers when such circumstances arise in the workplace.

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Photo of Terry Potter Terry Potter

A former field attorney with the National Labor Relations Board (NLRB), Terry views labor and employment cases from an insider’s perspective. He represents employers in collective bargaining, arbitrations and union avoidance techniques in a myriad of factual settings before the NLRB, National Mediation Board (NMB) and various state public labor relations boards.

Photo of Brian Stair Brian Stair

Brian’s work involves both counseling clients on human resources issues – ensuring their policies and handbooks comply with relevant laws – and assisting at all stages of litigation in the defense of public and private employers against administrative complaints and lawsuits before state and federal agencies and in state and federal court.