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EMPLOYMENT AND LABOR NEWS
Mickey Busca, Editor

NLRB Rules on Concerted Activity

February, 2019

NLRB SCALES BACK DEFINITION OF

“PROTECTED CONCERTED ACTIVITY”

The National Labor Relations Act, (“NLRA”), which covers both union and non-union employees, offers protections to such employees “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  (emphasis added).

But when is language spoken at the workplace protected as “concerted activity” or unprotected as “griping?”

On January 11, 2019, the National Labor Relations Board, (“NLRB”), answered this question by overruling a prior NLRB decision and providing less protection to employees. Alstate Maintenance, LLC and Trevor Greenidge, Case 29-CA-117101.

Prior to this ruling, the Board had held that an employee who protested in a meeting about an issue affecting wages, hours or work or other working conditions was presumed to be initiating concerted, i.e., group action.  However, the Alstate decision held that this can’t be assumed but instead should be determined by a fact-based inquiry that considers all evidence.

THE FACTS

Alstate had a contract providing ground services at JFK International Airport in New York City.  Greenidge was a skycap whose job was to assist arriving airline passengers with their luggage outside the entrance to the terminal.  The bulk of skycaps’ wages comes from passenger tips.

On July 17, 2013, Greenidge’s supervisor told him to assist with a soccer team’s equipment.  Greenidge remarked, “We did a similar job a year prior and we didn’t receive a tip for it.”

When the soccer team arrived, Greenidge and three other skycaps walked away.  The bulk of the team’s equipment luggage was assisted by baggage handlers inside the terminal before Greenridge and the skycaps helped finish the job.

Greenridge and the other skycaps were terminated.

THE RULING

In its ruling, the NLRB found that Greenridge did not engage in concerted activity with his statement and it was not for the purpose of “mutual aid or protection.”

The NLRB set out five factors that support an inference that an employee was trying to initiate group action by his statement:

  • 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 himself; 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 NLRB stated that all these factors need not be present to support a reasonable inference that an employee is seeking to initiate or induce group action.  The decision must be based upon the totality of the evidence.

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