The National Labor Relations Board (NLRB or Board) has issued a decision essentially restoring the test it used prior to 2011 in determining whether certain activity is “concerted” under the National Labor Relations Act (NLRA), and therefore protected under the law.
The ruling in Alstate Maintenance, LLC, 367 NLRB 68 (2019), reverses a 2011 decision issued by the Obama-era Board that significantly broadened the standard for finding protected concerted activity. In the 2011 case, WorldMark by Wyndham,the Board concluded that an employee who complained about an issue publicly in a group setting with other employees was by default initiating group action, and thus engaging in protected concerted activity.
The Alstate case involves an airport skycap who was fired for refusing to unload passenger cargo after complaining in front of coworkers and a supervisor about not being tipped. NLRB General Counsel Richard Griffin, an Obama appointee and former union official, formally charged the company with violating the NLRA by interfering with the employee’s right to engage in protected concerted activity.
The case eventually reached the Board, and in a 3-1 ruling issued on January 11, 2019, the Board concluded that the meaning of “concerted” under the NLRA does not encompass an “all but meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor.” The Board also emphasized that while the right to engage in protected concerted activity is broad, it is not without its limits.
Members of the Center for Workplace Compliance (CWC) can read more here.