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Obama-Era Case Defining Protected and Concerted Activity Overruled

Posted Tuesday, April 9, 2019 6:26 am

The National Labor Relations Board (“NLRB” or “Board”) overruled itself again in Alstate Maintenance, LLC and Trevor Greenidge, 367 NLRB 68 (2019), making it harder for employees—both union and nonunion—to be deemed to have engaged in concerted activity protected by the National Labor Relations Act (“NLRA”).  Prior to Alstate, essentially any employee complaint made to management in the presence of coworkers qualified as protected concerted activity pursuant to the Obama-era NLRB’s decision in WorldMark by Wyndham, 356 NLRB 765 (2011).  The Alstate Board overruled WorldMark, returning to a more stringent, employer-friendly standard.

Background

Trevor Greenidge was employed by Alstate Maintenance as a skycap at Kennedy International Airport.  When Greenidge’s supervisor asked him and three other skycaps to assist with a soccer team’s equipment, Greenidge replied, “We did a similar job a year prior and we didn’t receive a tip for it.”  When the team’s equipment arrived, the four skycaps walked away.  Management had to find other baggage handlers to take care of the equipment, though the skycaps did come back later and helped finish the job.  The skycaps were later terminated.  The question raised to the NLRB was whether Greenidge was unlawfully terminated because his comment constituted concerted and protected activity under the NLRA.

“Concerted” Activity

Section 7 of the NLRA guarantees an employee’s right to engage in protected concerted activity.  For activity to be “concerted,” an employee’s statement to a supervisor must either bring a group complaint regarding a workplace issue to the attention of management, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate group action.

In this case, there was no evidence that Greenidge’s comment was intended to bring a group complaint to management’s attention.  Instead, the Board focused on whether the comment constituted “concerted” activity because it sought to initiate group action.

Greenidge cited to Worldmark, which held that “an employee who protests publicly in a group meeting is engaged in initiating group action.”  The Alstate Board, however, disagreed with Greenidge and overruled Worldmark on the grounds that complaints in group settings are not the same as group complaints.  The NLRB reasoned that individual griping should not automatically qualify as concerted activity simply because it is made in a group meeting and uses the word “we.”  Rather, the NLRB stressed that the analysis of whether a complaint is truly a group complaint as opposed to a personal gripe requires an analysis of whether the totality of the circumstances supports a reasonable inference that in making the statement, the employee sought to induce group action.  The NLRB listed five factors that would tend to support drawing such an inference:

  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.

Applying this standard, the NLRB found that Greenidge did not engage in concerted activity and thus, his discharge was not unlawful.

Takeaway

The Alstate ruling is good news for employers, and puts them in a better position to defend against claims that employee complaints constitute concerted activity.  Employers, however, should remain cautious when disciplining employees for actions taken in a group setting, and carefully examine the totality of the circumstances surrounding the activity.  This is particularly important in a meeting where an employer announces a decision affecting a term or condition of employment.

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