Tuesday, January 15, 2019

NLRB reverses course and restores some sense to its concerted activity rules

The NLRB is the federal agency that saw the widest expansion of employee rights during the Obama presidency. And the doctrine that expanded the most was the Board's definition of protected concerted activity.

In Whole Foods Market, the NLRB had previously held that "activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action." In other words, a lone wolf could act in concert with other employees based solely on his or her intent to do so. This rule lead to some absurd results.

Last week, in Alstate Maintenance LLC [pdf], the Board restored some much needed sanity to the definition of "concerted" for the purpose of protected concerted activity.

Alstate involved an airport skycap who complained in front of co-workers to his supervisor about having to carry a soccer team's equipment. After the skycap was fired for complaining in front of customers, he alleged retaliation for engaging in protected concerted activity. The alleged concertedness? He used the word "we" in verbalizing his beef.

The Board concluded that the mere use of a collective pronoun cannot, in and of itself, created concerted activity:

The applicable standard should not sanction an all-but-meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor. 

The Board deviated from Whole Foods Market's reliance on the intent of the utterer, and instead relied on the overall effect and impact of the conduct.

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 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.… [R]elevant factors that would tend to support drawing such an inference include that
  1. The statement was 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. The decision affects multiple employees attending the meeting;

  3. 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;

  4. The speaker protested or complained about the decision's effect on the work force
    generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and

  5. The meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

The Board indicated that Alstate is just the first step in its refinement of the rules of protected concerted activity, and that it looks forward to more changes in future appropriate cases. Stay tuned.

* Photo by rawpixel on Unsplash