The Game Just Changed: The NLRB New Approach to Concerted Activity

As you may know, the National Labor Relations Act (the “Act” or the “NLRA”) applies to both unionized and non-unionized employers. This means that regardless of whether or not you have a union at your company, various labor laws apply which, if not followed, could have real life legal consequences. In addition to the right to organize (to form or attempt to form a union), employees working for union and non-union employers alike have the right to engage in “concerted activity,” so long as that activity is protected under the Act. “Concerted activities” generally require two or more employees working together toward a common goal but can also include a single employee working in the interest of other employees or working on issues that affect terms or conditions of employment that concern other employees.

The breadth and scope of what qualifies as concerted activity has changed over the decades, often times shifting and aligning with who occupies the White House. In the most recent shift, the National Labor Relations Board (the “NLRB” or the “Board”) over ruled a 2011 Obama-era ruling of what constitutes concerted activity to, as the Board put it, “restore” standards articulated in the NLRB cases of Meyers Industries, 268 NLRB 493 (1984) (“Meyers I”) and Meyers Industries, 281 NLRB 882 (1988) (“Meyers II”), which were Regan-era decisions from the 1980s.

In the January 2019 decision of Alstate Maintenance, LLC and Trevor Greenidge, 367 NLRB 68 (2019), the Board considered the issue of whether an employee who complained about not being tipped engaged in protected concerted activity. The employee worked for an airport as a skycap, where he assisted passengers with their luggage outside the entrance of the terminal. The bulk of his compensation came from passenger tips and, when he verbally protested against (and ultimately declined) to assist a sports team with their luggage because they did a similar job previously and did not receive a tip for it, he was discharged. In the litigation that ensued, it was argued that because the employee protested in a group setting and used the word “we,” he engaged in concerted activity, and that the employer violated the NLRA by discharging him in connection with the same.

The Board held that the proper standard for concerted activity was set for in Meyers II, and provides that concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action” or where individual employees bring “truly group complaints to the attention of management.” The Board noted, as articulated in Meyers II, that this is a factual inquiry based on the “totality of the record evidence.”

In applying this standard, the Board broke with and overruled an Obama-era ruling (WorldMark by Wyndham, 356 NLRB 765 (2011)) which the Board raised exception to as holding that complaints made in group settings are per se concerted activity. Specifically, the Board held:

. . . WorldMark by Wyndham must be, and is, overruled. In doing so, were affirm the standards articulated in Meyers I and II, under which individual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun. 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.

The Board also noted that even if it was concerted it was not protected activity because it was not for the mutual aid or protection of others. The phrase “mutual aid or protection” is broadly defined and can include just about any and all activity designed to improve a term or condition of employment. Significantly, the activity does not have to be union-related and can include activities ranging from raising safety concerns, making complaints about working conditions, or advocating for changes to an employment policy or practice to reporting complaints about a supervisor, aiding another employee with FMLA leave, or participating in an EEOC investigation. It has been argued to even include complaints or voiced concerns to a third party, such as customers, clients, or a complete stranger.

Under the Board’s analysis in Alstate Maintenance, LLC, however, tipping is a matter between the passenger (the customer) and the employee and is outside the direct employee-employer relationship. Given this and because the employee’s comment about tips was not aimed at improving terms of employment through the employee-employer relationship, the comment “did not have mutual aid or protection as its purpose” for purposes of the NLRA.

With the Alstate Maintenance, LLC, decision, the Board has narrowed the scope of what constitutes protected concerted activity and has resultantly made it more difficult for employees to prevail on concerted activity claims. While this may be good news for employers, companies should not rush to dismiss complaints from employees regarding terms and conditions of employment. As the Board reiterated, the question of whether someone has engaged in protected concerted activity is a factual inquiry based on the “totality of the record evidence.” Where possible, employers should consult with legal counsel familiar with the law on this subject before making a move.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

CONTACT ATTORNEY WARREN B. BULIOX

WARREN B. BULIOX
Partner, Milwaukee
735 N. Water Street, Suite 610, Milwaukee, WI 53202
P: (414) 436-0353 / F: (414) 436-0354
E: warren.buliox@mwhlawgroup.com
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