NLRB Clarifies Analyses of Concerted and Protected Activities | Practical Law

NLRB Clarifies Analyses of Concerted and Protected Activities | Practical Law

In Alstate Maintenance, LLC, the National Labor Relations Board (NLRB) upheld the termination of an employee who complained about low tips to his supervisor in the presence of several coworkers, concluding that the employee's remark did not constitute concerted activity and that he was not acting for mutual aid or protection.

NLRB Clarifies Analyses of Concerted and Protected Activities

Practical Law Legal Update w-018-5102 (Approx. 7 pages)

NLRB Clarifies Analyses of Concerted and Protected Activities

by Practical Law Labor & Employment
Law stated as of 31 Aug 2023 • USA (National/Federal)
In Alstate Maintenance, LLC, the National Labor Relations Board (NLRB) upheld the termination of an employee who complained about low tips to his supervisor in the presence of several coworkers, concluding that the employee's remark did not constitute concerted activity and that he was not acting for mutual aid or protection.
On January 11, 2019, in Alstate Maintenance, LLC, a majority of the panel (Board) heading the NLRB's judicial functions held in a 3-1 decision that an employer lawfully terminated an employee who expressed a concern to his direct supervisor in front of three coworkers that they might not receive adequate tips for a specific job assignment, finding that the employee had not engaged in concerted activity or acted for mutual aid or protection when he made the remark. In affirming the administrative law judge's (ALJ) decision, the majority provided clarifying analysis on what constitutes "concerted activity" under governing Board precedent. Member McFerran dissented, arguing that the majority's decision improperly narrows the scope of "concerted activity" and "mutual aid or protection" under the NLRA. (367 N.L.R.B. No. 68 (Jan. 11, 2019).)

Background

Trevor Greenidge worked as a skycap for Alstate Maintenance, LLC, which provides ground services at JFK International Airport. On July 17, 2013, Greenidge was working with three other skycaps when his supervisor requested their assistance with handling the baggage and equipment of a French soccer team. Greenidge commented that the skycaps had performed a similar job in the past and had not received a tip. After initially refusing the work assignment, the skycaps ultimately assisted a team of baggage handlers summoned by Alstate's customer to complete the job. Alstate subsequently discharged Greenidge, specifically citing his comment in its termination letter.
An NLRB ALJ dismissed an unfair labor practice (ULP) complaint alleging that Alstate discharged Greenidge for engaging in protected concerted activity in violation of Section 8(a)(1) of the NLRA. The NLRB General Counsel excepted.

Outcome

A majority of the Board (Chairman Ring and Members Kaplan and Emanuel):
Specifically, the majority:
  • Held that Greenidge's comment was not concerted activity under Meyers because Greenidge was not:
    • bringing a truly group complaint to his employer's attention, and the record contains no evidence of any "group activities" suggesting that his action was concerted (Meyers II, 281 N.L.R.B. at 886-87); or
    • seeking to initiate or induce group action, but rather was engaged in "mere griping," as evidenced by Greenidge's hearing testimony that the remark was "just a comment" made in an offhand manner and not aimed at changing Alstate's practices or policies (Mushroom Transp. Co., Inc. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)).
  • Overruled WorldMark by Wyndham as fundamentally inconsistent with Board precedent in Meyers because it:
    • abandoned the totality of the circumstances analysis articulated in Meyers II by establishing a per se rule that an employee initiates group action, and therefore engages in concerted activity, by publicly protesting in a group setting; and
    • improperly conflated a group setting with a group complaint, contradicting Meyers I's basic requirement that concerted activity be engaged in with or on the authority of other employees.
  • Distinguished cases in which the Board found an employee's spontaneous protest in the presence of coworkers constituted concerted activity, noting that in these cases, which are "at the line separating concerted from individual activity," the Board's totality of the circumstances analysis supported an inference that the complaining employee sought to initiate or induce group action, particularly the formal setting in which the complaint was made (Whittaker Corp., 289 N.L.R.B. 933 (1988); Caval Tool Division, Chromalloy Gas Turbine Corp., 331 N.L.R.B. 858 (2000), enforced 262 F.3d 184 (2d Cir. 2001)).
  • Held that the following factors are relevant to determining whether the totality of the circumstances support an inference that an employee sought to initiate, induce, or prepare for group action:
    • the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other employment term or condition;
    • the decision affects multiple employees attending the meeting;
    • the employee spoke up in response to the announcement to protest or complain about the decision, rather than merely asking questions about its implementation;
    • the employee protested or complained about the decision's effect on the workforce generally or some portion of the workforce, rather than its impact on the speaker; and
    • the meeting presented the first opportunity for employees to address the decision, so that any employee speaking out would have had no chance to discuss it with other employees beforehand.
  • Noted without deciding that Board precedent deeming employee statements about certain subjects to be "inherently concerted" also might conflict with the Meyers cases (Trayco of S.C., Inc., 297 N.L.R.B. 630, 634-35 (1990), enf. denied mem. 929 F.2d 597 (4th Cir. 1991); Aroostook Cty. Reg'l Opthalmology Ctr., 317 N.L.R.B. 218, 220 (1995), enf. denied in relevant part 81 F.3d 209 (D.C. Cir. 1996); Sabo, Inc. (Hoodview Vending Co.), 362 N.L.R.B. No. 81 (Apr. 30, 2015); see Legal Update, Gossiping with Co-Worker About Employer's Help Wanted Ad Was Inherently Concerted Activity: NLRB).
  • Held further that Greenidge's statement objecting to the soccer team's tipping practices was not made for mutual aid or protection because:
    • tips, which are given to skycaps by airline passengers in their sole discretion, are not wages received from or controlled by the employer, and therefore fall outside of the scope of the NLRA's mutual aid and protection clause (see Universal Syndications, Inc., 347 N.L.R.B. 624, 630-31 (2006));
    • it was not aimed at changing Alstate's policies or practices, and the record contained no evidence indicating that Greenidge wanted the existing tipping arrangements to be modified (cf. Thalassa Restaurant, 356 N.L.R.B. 1000, 1016 (2011)); and
    • it was not aimed at improving the skycaps’ lot as employees through channels outside the immediate employee-employer relationship, such as through recourse to an administrative, legislative, or judicial forum (see Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 (1978)).
Member McFerran dissented, arguing that:
  • Greenidge sought to induce or initiate group action by his complaint under an objective totality of the circumstances analysis, as evidenced by:
    • his coworkers' decision to follow Greenidge's lead and initially refusing to undertake the work assignment;
    • Alstate's stated objection to Greenidge's comment being made "in front of other skycaps" and interpretation of the remark as an invitation to the other skycaps to make similar objections; and
    • Alstate's subsequent punishment of the skycaps as a group.
  • The majority misreads the WorldMark decision, which does not establish a "per se" rule when read in context, but rather stands only for the limited proposition that a statement made spontaneously in an informal setting may still constitute concerted activity under a totality of the circumstances analysis.
  • Despite the majority's claim that their articulated factors for evaluating whether a statement seeks to induce or initiate group action are not exhaustive, the majority's application of those factors in the instant case illustrates that the absence of these factors can foreclose a finding of concerted activity, thereby frustrating Congress's statutory objectives and unjustly excluding from protection activity that is concerted by any reasonable objective measure.
  • Greenidge clearly acted for "mutual aid or protection" when expressing concern about tips, which directly concern the skycaps' compensation and are integral to their interests as employees (Eastex, Inc., 437 U.S. at 567).

Practical Implications

The majority casts its decision in Alstate Maintenance as restoring the standard for what constitutes concerted activity under the Board's Meyers precedent. Here, the majority declines to extend protection under Section 7 of the NLRA to a spontaneous complaint made by an employee to his direct supervisor in the presence of coworkers regarding inadequate customer tips. This decision, and the express overruling of WorldMark by Wyndham, illustrate the Board's effort to resist expansion of the NLRA to protect individual action rather than concerted action for mutual aid or protection. Significantly, the majority also stated in a footnote that it would be interested in reconsidering its line of cases deeming certain statements to be "inherently concerted," suggesting that it likely would overrule this line of precedent as inconsistent with Meyers if the question is raised directly in a future case.

UPDATE:

In a decision issued August 31, 2023 and dated August 25, 2023, the Board overruled Alstate Maintenance and its factors. The Board held that Alstate Maintenance improperly restricted the Meyers I and II analyses with those factors rather than looking at the totality of the record evidence. It also held that the Board erred by overruling WorldMark by Wyndham. (Miller Plastic Prods., Inc., 372 N.L.R.B. No. 134 (Aug. 25, 2023); see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.)