Categories: NLRB Developments

By Ian Gabriel Nanos

We have written about it before but a recent NLRB decision is yet another example of the NLRB’s expanding and expansive view of what constitutes protected, concerted activities, and is therefore protected under the National Labor Relations Act.  In Fresh & Easy Neighborhood Mkt, the NLRB (Chairman Pearce and Members Hirozawa and Schiffer) found that an employee engaged in protected, concerted activity when the employee spoke to co-workers about a single act of sexual harassment that was “seemingly directed at [the employee] alone.”   The majority noted that it did not matter whether she thought or believed that she was engaged in protected activity.

The dissenters (Members Johnson and Miscimarra), on the other hand, cautioned that the majority decision could have “limitless application” to myriad employee complaints falling outside the NLRB's jurisdiction.  As Member Johnson noted in his dissent, with apologies to George Bernard Shaw, the Board at this point consists of “five Board Members divided by a common language,” when it comes to their views of how broadly protected concerted activity can be defined under the Act.

Here are the facts.  An employee walked into the break room and discovered that someone wrote a sexually degrading comment next to where her name appeared on a company whiteboard.  The employee, upset with the sexual statement that was directed at her, wanted to file a complaint of sexual harassment.  So far the NLRA is not yet implicated.  But here is where it gets interesting:  The employee then created a hand-copied reproduction of the offending material and asked three co-workers to sign the documentation.  The employee explained that she did this to document evidence in support of her claim of sex harassment.  She added that she thought the other female co-workers also found the material offensive.  She admitted that she did not intend, however, to create a joint-complaint with her co-workers.  In fact, the co-workers indicated that, by signing the documentation, they believed they were merely serving as witnesses to validate the accuracy of the documentation.  And some of the co-workers even went to far as to complain to the employer that they felt the employee “bull[ied]” them into signing the document.

After the employer received notification of the offending statement, the employer initiated an investigation, including review of video footage in the break room to identify the perpetrator.  The employer also spoke with the employee about her efforts to obtain signatures from her co-workers, inquired about the employee’s motivations for doing so and instructed the employee to refrain from obtaining any further witness statements so that the employer could conduct an investigation.  Significantly, the employer informed the employee that she could talk to other employees about the incident and/or request that they be witnesses.  The employee did not receive any discipline for her initial efforts to obtain the signatures.

Nevertheless, according to the NLRB, the employee engaged in “concerted activity” for the “mutual aid or protection.”  The NLRB reasoned that, even if the employee was pursuing her own claim with respect to conduct directed at her, “she wanted her co-workers to be witnesses to the incident, which she would then report to the [employer].”  The Board found that the personal element of the sexual harassment complaint and “selfish motivation” for speaking to her co-workers was not a bar to finding “concerted activity” because “concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed” – even if the co-workers disagreed with the complaint or did not want to sign the document.

The Board further concluded that this activity was for the “mutual aid or protection” because the employee’s efforts to obtain witnesses effectively invoked federal or state law protections that “implicated” the rights of other employees.  The Board surmised that, since it would be “unquestionably” protected to “join forces with another employee who likewise had been the victim of alleged sexual harassment,” the analysis should not change just because the offending conduct was “seemingly directed at [the employee] alone.”  The reason, is that in both cases the employee is still attempting to “’band together’ in solidarity to address their terms and conditions of employment with their employer.”

The Board then explicitly overruled the Board’s divided decision in Holling Press, Inc., 343 NLRB 301 (2004), because that decision “effectively nullifie[d] the solidarity principle when it comes to claims of sexual harassment involving conduct directed at only one employee.”  In other words, as far as the majority of the current Board is concerned, solidarity need not be inconsistent with solitary.

This expansive approach to the notion of “concerted activity” is certainly not without precedent.  For example, we recently wrote, about an ALJ decision finding that a waiter at a restaurant who, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, engaged in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing.

There is, however, something of a saving grace.  The Board in Fresh & Easy found that the employer’s action – on these particular facts – was lawful.   The Board explained that the employer had a legitimate business interest in conducting its own investigation.  The employer’s instructions that the employee should not attempt to obtain any witness statements, moreover, was narrowly tailored to meet the employer’s need to conduct an impartial and thorough investigation and were found to comply with the standards enunciated by the Board in Banner Health  in 2012, when it considered when and in what circumstances requiring confidentiality in connection with investigations could itself interfere with employees’ rights under the Act.  Indeed, the Board acknowledged that the employer’s instruction did not prevent the employee from “from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements from coworkers in future complaints."  In addition, the Board found that the employee’s inquiry as to the employee’s motivations for obtaining the signatures was narrowly tailored – again, on these facts – to the employer’s legitimate interest in conducting a legitimate investigation, including into the assertions that some of the co-workers felt “bull[ied]” into signing the documentation.

Unfortunately, this remains a cautionary tale: on a new set of facts, the Board may not find the employer’s instructions to be sufficiently narrowly tailored and the employer may not come out as relatively unscathed.


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