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Tuesday, August 19, 2014

Even the lone wolf can establish protected concerted activity with today’s NLRB

In Fresh & Easy Neighborhood Market (8/11/14) [pdf], the NLRB held that an employee engaged in protected concerted activity merely by asking co-workers for help in making a sexual harassment complaint to her employer. It was irrelevant to the Board whether the employee had engaged other employees for group activity; all that mattered was that the employee engaged others at all.

Margaret Elias, a cashier, wrote a note on a whiteboard about some training known as “TIPS.” When she returned to the whiteboard the next day, she noticed that the “P” in “TIPS” had been changed to a “T,” and someone had drawn a picture of a worm (or peanut) urinating on her name. In support of her intent to file a sexual harassment complaint with her employer, Elias asked three co-workers to sign a piece of paper that contained a copy of the whiteboard. When the employee relations manager later spoke to Elias about her harassment complaint, she asked why Elias felt the need to obtain co-workers signatures, and instructed her not to obtain any further statements so that she could conduct an investigation. Elias admitted that was only filing the complaint on her own behalf, and her co-workers were not involved other than as potential witnesses.

Based on these facts, the NLRB concluded that the employer violated the Act by questioning Elias about the signatures she obtained:

Here, Elias sought her coworkers’ assistance in raising a sexual harassment complaint to management, by soliciting three of them to sign the piece of paper on which she had copied the altered whiteboard message in order to “prove” the harassment to which she had been subjected. Although she did not intend to pursue a joint complaint, her testimony establishes that she wanted her coworkers to be witnesses to the incident, which she would then report to the Respondent…. Elias’ conduct in approaching her coworkers to seek their support of her efforts regarding this workplace concern would constitute concerted activity. Elias did not have to engage in further concerted activity to ensure that her initial call for group action retained its concerted character.

Even if the employee was pursuing her own individual claim, her “selfish motivation” for speaking to her co-workers was irrelevant because “concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.”

This case creates a dangerous precedent. It enables an employee to create an unfair labor practice out of thin air merely by airing an issue with co-workers, regardless of whether those co-workers share in that concern. It makes case for the lone wolf, who, even though, by definition, a lone wolf cannot act in concert.

I’ve long argued that the current iteration of the NLRB is using “protected concerted activity” as a life-vest to prop up its own existence. Fresh & Easy does little to dissuade me of that opinion. If a single employee, admittedly acting on her own behalf, can create an unfair labor practice merely by talking to other employees about a workplace issue, then any workplace conversation could constitute protected concerted activity. If that is the rule, then good luck disciplining employees for anything.

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