On January 11, 2019, the National Labor Relations Board issued a decision narrowing the scope of what qualifies as “protected concerted activity” under the National Labor Relations Act. With this decision, the Board reversed course on a long line of Obama-era cases expanding the scope of when an employee’s complaints could be considered to be protected concerted activity, under the Act. The Board also stated its desire to overrule other cases that previously expanded the definition of protected activity.
In Alstate Maintenance, LLC, 367 NLRB No. 68, an airport skycap complained to fellow employees and a supervisor about being asked to handle the baggage for a large group of passengers, stating: “We did a similar job a year prior and we didn’t receive a tip for it.” When the group of passengers arrived, the group of employees walked away and refused to handle their bags. The employer discharged the complaining employee (as well as the other skycaps involved) for “indifferen[ce] to the job” and the complaint about the tip. The Administrative Law Judge dismissed the complaint, finding no violation of the Act, and the Board agreed.
In Alstate, the Board held that the use of the word “we” in the employee’s complaint did not qualify the complaint as protected concerted activity because no evidence showed the employee (1) brought a truly group complaint, as opposed to a personal gripe; and (2) sought to induce group action with his statement. The Board also noted the lack of evidence that the employees discussed the issue beforehand or sought to petition management for a change in policy or practice. As the employee himself testified, it was “just a comment.”
In its decision, the Board listed several non-exhaustive factors that would lead to a reasonable inference that the employee truly sought to initiate group action:
- 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;
- The decision affects multiple employees attending the meeting;
- 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;
- 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
- 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.
The Board also stated its desire to reconsider, in the appropriate case, prior decisions where the Board deemed statements about certain subjects “inherently” concerted, such as statements about wages, schedules, and job security.
The Alstate decision is positive for employers because it narrows the scope of protected concerted activity to those comments and actions that truly seek to (1) bring a group complaint, or (2) induce group action for the purpose of mutual aid or protection. While the decision provides more specific guidance to use in evaluating whether an employee’s complaint would be considered protected concerted activity, cautious employers should continue their current, more conservative, approach, as the Board’s position could shift in another election year. It can often take several years before a case reaches a Board decision, and the composition of the Board can change by then.