• NLRB Re-examines Individual Concerted Action Rule and Returns to Recently Abandoned Definition of Protected Concerted Activity
  • January 22, 2019 | Authors: James R. Redeker; Adam Keating; Eve I. Klein
  • Law Firms: Duane Morris LLP - New York Office ; Duane Morris LLP - Philadelphia Office; Duane Morris LLP - Atlanta Office
  • The National Labor Relations Board (NLRB) has upended another Obama-era reversal of established precedent by returning to principles first enunciated by the NLRB in the 1980s relating to the distinction between protected group (i.e., concerted) activity and unprotected individual activity. In Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), the NLRB upheld an administrative law judge’s dismissal of a complaint accusing an employer of violating Section 8(a)(1) of the National Labor Relations Act (NLRA) by terminating a JFK International Airport skycap for complaining about not receiving a tip. Specifically, the NLRB found that the skycap’s single complaint about tips made to a supervisor in front of several colleagues was not concerted activity, holding that the complaint about the tipping habits of soccer players was neither concerted activity nor was it undertaken for the purpose of mutual aid or protection.

    Prior to the NLRB’s decision in Alstate, an employee would be found to be engaged in protected concerted activity simply if he or she were complaining in a group setting. In overturning its 2011 WorldMark by Wyndham, 356 NLRB 765 (2011) decision, the NLRB reaffirmed the standards articulated in a pair of mid-1980s cases (Meyers Industries[1]) that “concertedness” should not hinge on whether the speaker uses first person plural pronouns in front of other employees:

    Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either 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 NLRB also listed several factors that would tend to support a reasonable inference that in making a particular statement, an employee was seeking to initiate, induce or prepare for group action:

    • The statement was made in an employee meeting called by the employer to announce a decision affecting a term or condition of employment;
    • The decision affects multiple employees attending the meeting;
    • The employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
    • The speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely him- or herself; and
    • The meeting was the first opportunity to address the decision (i.e., there was no opportunity to discuss with co-workers beforehand).

    The NLRB explained that not all of these factors are required to support an inference that an employee is seeking to initiate or induce group action, and that the question remains “a factual one based on the totality of the circumstances.”

    This decision represents a reversal of prior NLRB decisions that the majority found were “impermissibly conflating the concepts of group setting and group complaints.” The NLRB also foreshadowed in a footnote that it may review similar precedents that may conflict with Meyers—such as those in which the NLRB has deemed statements about certain subjects “inherently” concerted.” The NLRB stated:

    Although we do not reach them here, other cases that arguably conflict with Meyers include those in which the Board has deemed statements about certain subjects “inherently” concerted. See Trayco of S.C., Inc., 297 NLRB 630, 634–635 (1990) (discussions about wages inherently concerted), enf. denied mem. 927 F.2d 597 (4th Cir. 1991); Aroostook County Regional Ophthalmology Center, 317 NLRB 218, 220 (1995) (discussions about work schedules inherently concerted), enf. denied in relevant part 81 F.3d 209 (D.C. Cir. 1996); Hoodview Vending Co., 362 NLRB 690 (2015), incorporating by reference 359 NLRB 355 (2012) (discussions about job security inherently concerted). We would be interested in reconsidering this line of precedent in a future appropriate case.

    What This Means for Employers

    Although the NLRB has stepped back from “workplace complainer” as a per se protected class, it has not eliminated the possibility that a “troublemaker” may still be engaging in conduct protected by the NLRA. As the NLRB acknowledged, a determination of whether employee activity constitutes protected concerted activity under Section 7 of the NLRA is a fact-specific analysis that requires balancing various factors. Accordingly, employers should remain cautious when disciplining or terminating employees for activities carried out in a group setting, particularly if those activities occur when management is discussing changes to any terms and conditions of employment. Employers should consult with experienced labor counsel before taking any such action or if they have questions about how this standard is applied.