NLRB Begins to “Restore” the Appropriate Standard for Defining “Concerted Activity”
Last week, the National Labor Relations Board (the “Board”) issued a decision that “begins the process of restoring” a decades-old definition of “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) – a definition that, in the Board’s view, had become muddled and unduly expanded as recent decisions “blurred the distinction between protected group action and unprotected individual action.”
In a 3-1 decision, with Member McFerran dissenting, the Board in Alstate Maintenance, LLC upheld an administrative law judge’s dismissal of a complaint issued by the Board’s previous General Counsel, which alleged that Alstate Maintenance, LLC committed unfair labor practices when it discharged Trevor Greenidge, a skycap who worked at JFK airport. As a skycap, Greenidge’s primary job responsibility was to assist arriving airline passengers with their luggage outside of the airport terminal. Greenidge’s supervisor instructed him (and three other skycaps) to assist with moving a soccer team’s equipment. In response, Greenidge commented: “We did a similar job a year prior and we didn’t receive a tip for it.” When the equipment arrived, all four skycaps walked away. The managers sought assistance from baggage handlers inside the terminal; after those baggage handlers completed a significant share of the work, Greenidge and the other three skycaps returned to help complete the assignment. The skycaps were subsequently discharged. The only issue before the Board was whether Greenidge’s comment and actions constituted protected concerted activity and was therefore protected by the Act.
In the Complaint issued on behalf of the Board’s General Counsel following an investigation of Greenidge’s charge, the General Counsel alleged that the actions and comments were protected by the Act because Greenidge was acting with respect to his terms and conditions of employment, and those of his co-workers, the other skycaps who he spoke to about his experience with the soccer team not tipping in the past.
The standards for determining whether an employee has engaged in “concerted activity” was first articulated in two Board decisions from the mid-1980s, known as Meyers Industries. In Alstate Maintenance, LLC, the Board reiterated that under the Meyers standards, an individual employee engages in concerted activity when he or she does either one of the following:
Seeks to initiate, induce, or prepare for group action. An employee’s “mere talk” must “be talk looking toward group action” – otherwise, it will simply constitute “mere griping.”
Brings “truly group complaints” (as opposed to personal grievances) to management’s attention and can point to record evidence that demonstrates “group activities” (such as prior or contemporaneous discussion of the concern among members of the workforce).
As part of its analysis, the Board overruled its 2011 decision in WorldMark by Wyndham because that decision could not be reconciled with the Meyers standard, and the Board majority found that it erroneously shielded certain unprotected individual action. The Board found that WorldMark improperly deviated from Meyers by holding that any employee who protests publicly in a group meeting automatically engages in protected activity per se – and that such a rule obviated any fact-based analysis as to whether the employee had protested on the authority of other employees (which would be concerted activity) or solely on the employee’s own behalf (which would not be concerted activity).
Applying the Meyers standard in the Alstate case, the Board “easily” concluded that Greenidge’s comment did not constitute concerted activity. First, the comment did not seek to initiate, induce, or prepare for group action. The majority concluded that Greenidge’s comment itself (i.e., “[w]e did a similar job a year prior and we didn’t receive a tip from it”) did not demonstrate that he was seeking to initiate or induce group action, and Greenidge had credibly testified during the hearing that his remark was “just a comment” that was not aimed at changing his employer’s policies or practices. Second, the General Counsel did not contend that Greenidge was bringing a “truly group complaint” to management’s attention. In any event, there was no record evidence of “group activities” – such as evidence that tipping habits had been discussed amongst the skycaps prior to Greenidge’s comment – and the Board concluded that Greenidge’s mere use of the word “we” in his comment did not supply the required evidence of “group activities.”
The Board articulated several factors that might support a reasonable inference that, in making a statement or comment, an individual employee engaged in concerted activity – either by bringing a “truly group concern” to management’s attention or by initiating, inciting, or preparing for group action:
The statement was made during an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment,
The decision affects multiple employees attending the meeting,
The employee who makes a comment in response to such an announcement does so to protest or complain about the decision – not merely to ask questions about how the decision will be implemented,
The employee protests or complains about the decision’s effect on the workforce generally (or some portion of the workforce), not solely about the decision’s effect on the employee himself,
The meeting presented the first opportunity for employees to address the decision, so the speaker had no opportunity to discuss the issue with other employees beforehand, and
Other evidence that a statement made in the presence of coworkers was made to initiate, induce, or prepare for group action – such as an express call for employees to act collectively.
As part of its observation that more recent decisions by the Board had improperly deviated from the Meyers standard, the Board pointed to several cases that concluded that an employee’s statements about certain subjects (such as wages, work schedules, and job security) were “inherently” concerted. As part of its effort to “restor[e]” the Meyers standard, the Board expressed its “interest[ ] in reconsidering this line of precedent in a future appropriate case.”
What Does this Mean for Employers?
It is important not to over-read the application of the Alstate decision. While the Board’s decision concluded that in the context of this statement by an employee to co-workers that he was not calling for group action or expressing a position on behalf of employees collectively, a careful fact-based analysis remains critical in all cases.