Recent NLRB Decision Restricts the Scope of Protected Concerted Activities Under the National Labor Relations Act
January 23, 2019
On January 11, 2019, in Alstate Maintenance, LLC, the National Labor Relations Board issued a decision that draws a clear distinction between employee conduct that constitutes protected "concerted activities" under the National Labor Relations Act and employee conduct that constitutes unprotected individual action.
Under Section 7 of the NLRA, employees have a right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Over the years, as the Board majority in Alstate Maintenance pointed out, the Board has issued decisions that "blurred the distinction" between protected group action and unprotected individual action. The Board majority characterized its Alstate Maintenance decision as the beginning of the process of restoring that distinction "by overruling conflicting precedent that erroneously shields individual action and thereby undermines congressional intent to limit the protection afforded under the Act to concerted activity for the purpose of mutual aid or protection."
In Alstate Maintenance, Trevor Greenidge, a skycap at Kennedy International Airport, was working with three other skycaps outside the entrance to one of the airport terminals when he was approached by his supervisor and instructed to assist with a soccer team's luggage. Mr. Greenidge stated, "We did a similar job a year prior and we didn't receive a tip for it." Mr. Greenidge's employment was terminated for, among other things, making the comment about not being tipped.
The Board's General Counsel filed a complaint on Greenidge's behalf, alleging that he had been unlawfully discharged for engaging in protected concerted activity by raising concerns to his direct supervisor in the presence of his co-workers about the possibility that he and his co-workers would not receive tips for a job assignment. The Administrative Law Judge dismissed the complaint and the Board affirmed the dismissal. In reaching its decision, the Board applied the standard it had previously articulated in its 1984 and 1986 decisions in Meyers Industries I and Meyers Industries II. In those cases, the Board held that an individual employee who raises a workplace concern with a supervisor is engaged in concerted activity if there is evidence of "group activities." The Board stated that there must be evidence of "prior or contemporaneous discussion of the concern between or among members of the workforce -- warranting a finding that the employee was indeed bringing to management's attention a 'truly group complaint,' as opposed to a purely personal grievance."
The Board held that Greenidge's statement did not satisfy the Meyers standard. Rather, it was clearly a personal gripe that was not made to bring a group complaint to the attention of management. Although Greenidge's statement happened to be made in the presence of co-workers and although he used the word "we" instead of "I," the Board found that these facts did not transform his conduct into concerted activity. The Board also found that there was no evidence that Greenidge was seeking to initiate, induce, or prepare for group action. Moreover, the Board held that Greenidge's conduct was not undertaken for the purposes of mutual aid or protection, which was also required to receive statutory protection.
Importantly, in reaching this decision, the Board explicitly overruled its 2011 decision in the WorldMark by Wyndham case. In that case, the Board majority articulated a rule that, as a matter of law, "an employee who protests publicly in a group meeting is engaged in initiating group action," even if the protest is made by and on behalf of the employee himself. In Alstate Maintenance, the Board held that this rule was not consistent with Meyers Industries I or Meyers Industries II and therefore overruled the WorldMark by Wyndham decision.
The Board included a footnote in its Alstate Maintenance decision stating that it "would be interested in reconsidering" any other Board decisions stating principles that seem to conflict with the Meyers Industries decisions (such as, for example, decisions holding that statements about certain subjects are inherently concerted). So, we can expect more decisions from the Board on this issue in the near future.