May 19, 2019

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The NLRB Continues To Chip Away At Individual Protected Concerted Activity

An employee’s right to engage in concerted activities for the purpose of mutual aid and protection is basic to the National Labor Relations Act’s (NLRA) Section 7. Although these concepts, “concertedness” and “mutual aid or protection”, sound similar and are often closely related, they are distinct statutory requirements, each calling for two different inquiries and requiring proof. Whether an employee’s conduct qualifies as “concerted” depends on if and how their actions can be linked to those of their coworkers. In contrast, the concept of “mutual aid or protection” focuses on the goal of concerted conduct, chiefly, whether the employee(s) involved are seeking to improve their conditions of employment or otherwise improve their lot as employees.

During the Obama Board’s years, protected concerted activity (PCA) was given an expansive reading; so expansive as to render almost any complaint an employee made at or about work legally protected conduct because it might induce or could be in preparation for group action with respect to working conditions the employees held in common. However, three months ago, that expansive application of PCA to individual action began to shrink with Alstate Maintenance, 367 NLRB No. 68 (2019), a case we reported on, where the current Republican Board observed that the importance of PCA required it to formulate and apply a standard for concertedness that recognized the difference between group and individual employee complaints. In Alstate, a Board majority held that an individual employee’s complaint about the possibility of not receiving a tip from a customer was not PCA, even though it was made in front of other employees. Moreover, the Alstate Board questioned earlier Board decisions granting protection to “inherently concerted” individual remarks, calling on litigants to present the Agency with cases calling for the reconsideration of this line of precedent.

This past week, the Board issued a second decision, picking up where Alstateleft off and continuing to narrow the circumstances under which individual conduct will be considered PCA. The new case, Quicken Loans, Inc., 367 NLRB No. 112, centered around the discharge of a mortgage banker who, after listening to a coworker’s profanity laced complaints about a customer made in a public restroom, empathized with his coworker’s complaint, stating “I under[stand] why [you are] frustrated.”

Reversing an administrative law judge, the Board held the terminated employee’s conduct unprotected and dismissed the complaint against Quicken because the employee did nothing more than to listen to another employee’s personal gripe and express his empathy and because the terminated employee’s conduct was not aimed at any of Quicken’s policies or practices. Accordingly, the Board found the terminated broker’s conduct to be neither “concerted” nor aimed at a goal of “mutual aid or protection”.

The Board’s decision in Quicken Loans comes on the heels of a recently-issued Advice Memorandum (General Motors, 07-CA-053570) in which the Division of Advice found that an employer did not violate the Act when it terminated an employee for posting a derogatory comment on the Employer’s Facebook page that resulted in his three-day suspension (“to the person who reported me, kiss my ass!”). The Division of Advice opined that the comment “expressed his personal anger with a co-worker; was made solely on his own behalf; and did not involve shared common concerns. The comment contained no language suggesting that the Charging Party sought to initiate or induce co-workers to engage in group action. Therefore, the Charging Party’s conduct was not concerted… [and] the Charging Party did not engage in conduct that, though not concerted, nonetheless implicated common concerns underlying Section 7 of the Act, i.e., conduct with regard to subjects such as wages that would be protected if it were concerted.”

Based on AlstateQuicken, and General Motors, it appears that the current Board is carefully scrutinizing PCA allegations and is reading the Act far more literally than prior Boards. According to the current Board, Section 7 says what it means and this Board is going to apply it to mean what it says; to be protected; employee conduct must be proven to be both concerted and for the purpose of mutual aid or protection. Absent actual proof of both essential elements, an individual employee’s conduct or complaints at or about work (or complaints made on an employee’s own behalf) will not be protected and an employer’s discipline of a worker for engaging in such conduct, standing alone, will not be found to violate the Act.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

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John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees.

Mr. Bolesta also regularly counsels clients on all aspects of federal, state, and local equal employment opportunity and fair employment practices laws and regulations, and regularly advises clients on confidentiality, trade secrets, no solicitation and non-compete matters. Moreover, Mr. Bolesta represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. His experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before Administrative Law Judges and in court.

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