NLRB Returns to Narrower Definition of "Concerted Activity"

The National Labor Relations Board recently issued a decision narrowing the definition of “concerted activity” under the National Labor Relations Act, Alstate Maintenance, LLC, 367 NLRB 68 (2019). No longer will individual gripes, even if made in a group setting with a manager present, automatically rise to the level of concerted activity protected under the NLRA. Instead, the Board, in reversing WorldMark by Wyndham, 356 NLRB 765 (2011), returns to the standard articulated in the 1980’s under the Myers Industries test, 268 NLRB 493 (1984), which was followed for some three decades before being modified by Wyndham.

Under Myers Industries, concerted activity was defined as (1) group action or action on behalf of other employees; (2) activity seeking to initiate or prepare for group activity; or (3) bringing a group complaint to the attention of management. Wyndham, in interpreting the third prong of Myers Industries, held that lodging a complaint in a group setting and using the term “we” qualified as concerted activity, even if the complaint was essentially an individual gripe.

Under the recent case, the third part of the test returns to the concept that a complaint must be about a workplace issue, and the circumstances must make it clear that the employee was seeking to initiate or induce group action.  Given the facts in Alstate, it will likely be much more difficult to prove concerted activity in some circumstances.

Alstate  provides skycap services at JFK airport in New York. An employee, Trevor Greenidge, worked as a skycap assisting passengers with their luggage. Tips form the primary source of a skycap’s earnings. In July 2013 Greenidge was working with three other skycaps when he was told by his supervisor to assist with the luggage for a soccer team. He replied by stating, “we did a similar job a year prior and we didn’t receive a tip for it.” He then walked away with the three other skycaps. Other baggage handlers from inside the terminal started performing the work, and Greenidge, along with the three other skycaps eventually returned and helped complete the job. All four were terminated for failing to provide acceptable customer service. They filed a ULP claiming they were terminated for engaging in protected concerted activity, a violation of the NLRA.

While some may consider these facts to be a close call, the Board ruled 3-1 that the conduct was unprotected. The majority explained that to be protected the statements must reflect a group complaint regarding a workplace issue and be made to a supervisor. Alternatively, 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 then articulated some factors to help determine if the statement is protected:

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 workforce generally or some portion of the workforce, not solely about its effect on the speaker; 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.

Not all factors must be met, and other evidence that the statement was made in front of coworkers to initiate, induce, or prepare for group action, such as an express call for employees to act collectively would also support a finding of concertedness.

Here, the Board found the tipping habits of customers had not been previously discussed by employees, the statement was not made to induce group action (although they all walked away), tipping was a matter between the skycap and customer that the employer is essentially removed from, and there was no evidence that tipping had been a group concern previously.

This case makes it harder for employees to successfully claim concerted activity, and no longer will individual gripes be automatically found to be protected speech, even if made in front of co-workers to a supervisor while using the pronoun “we.” Employers should continue to monitor this area as the current pro-management Board has stated it is not done re-evaluating the parameters of concerted activity, or other areas where Obama era decisions favored workers.