Last week, the National Labor Relations Board (the “Board”) issued a decision that “begins the process of restoring” a decades-old definition of “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) – a definition that, in the Board’s view, had become muddled and unduly expanded as recent decisions “blurred the distinction between protected group action and unprotected individual action.”

In a 3-1 decision, with Member McFerran dissenting, the Board in Alstate Maintenance, LLC upheld an administrative law judge’s dismissal of a complaint issued by the Board’s previous General Counsel, which alleged that Alstate Maintenance, LLC committed unfair labor practices when it discharged Trevor Greenidge, a skycap who worked at JFK airport. As a skycap, Greenidge’s primary job responsibility was to assist arriving airline passengers with their luggage outside of the airport terminal. Greenidge’s supervisor instructed him (and three other skycaps) to assist with moving a soccer team’s equipment. In response, Greenidge commented: “We did a similar job a year prior and we didn’t receive a tip for it.” When the equipment arrived, all four skycaps walked away. The managers sought assistance from baggage handlers inside the terminal; after those baggage handlers completed a significant share of the work, Greenidge and the other three skycaps returned to help complete the assignment. The skycaps were subsequently discharged. The only issue before the Board was whether Greenidge’s comment and actions constituted protected concerted activity and was therefore protected by the Act.

In the Complaint issued on behalf of the Board’s General Counsel following an investigation of Greenidge’s charge, the General Counsel alleged that the actions and comments were protected by the Act because Greenidge was acting with respect to his terms and conditions of employment, and those of his co-workers, the other skycaps who he spoke to about his experience with the soccer team not tipping in the past.

The standards for determining whether an employee has engaged in “concerted activity” was first articulated in two Board decisions from the mid-1980’s, known as Meyers Industries. In Alstate Maintenance, LLC, the Board reiterated that under the Meyers standards, an individual employee engages in concerted activity when he or she does either one of the following:

  1. Seeks to initiate, induce, or prepare for group action. An employee’s “mere talk” must “be talk looking toward group action” – otherwise, it will simply constitute “mere griping.”
  2. Brings “truly group complaints” (as opposed to personal grievances) to management’s attention and can point to record evidence that demonstrates “group activities” (such as prior or contemporaneous discussion of the concern among members of the workforce).

As part of its analysis, the Board overruled its 2011 decision in WorldMark by Wyndham because that decision could not be reconciled with the Meyers standard, and the Board majority found that it erroneously shielded certain unprotected individual action. The Board found that WorldMark improperly deviated from Meyers by holding that any employee who protests publicly in a group meeting automatically engages in protected activity per se – and that such a rule obviated any fact-based analysis as to whether the employee had protested on the authority of other employees (which would be concerted activity) or solely on the employee’s own behalf (which would not be concerted activity).

Applying the Meyers standard in the Alstate case, the Board “easily” concluded that Greenidge’s comment did not constitute concerted activity. First, the comment did not seek to initiate, induce, or prepare for group action. The majority concluded that Greenidge’s comment itself (i.e., “[w]e did a similar job a year prior and we didn’t receive a tip from it”) did not demonstrate that he was seeking to initiate or induce group action, and Greenidge had credibly testified during the hearing that his remark was “just a comment” that was not aimed at changing his employer’s policies or practices. Second, the General Counsel did not contend that Greenidge was bringing a “truly group complaint” to management’s attention. In any event, there was no record evidence of “group activities” – such as evidence that tipping habits had been discussed amongst the skycaps prior to Greenidge’s comment – and the Board concluded that Greenidge’s mere use of the word “we” in his comment did not supply the required evidence of “group activities.”

The Board articulated several factors that might support a reasonable inference that, in making a statement or comment, an individual employee engaged in concerted activity – either by bringing a “truly group concern” to management’s attention or by initiating, inciting, or preparing for group action:

  • The statement was made during 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 makes a comment in response to such an announcement does so to protest or complain about the decision – not merely to ask questions about how the decision will be implemented,
  • The employee protests or complains about the decision’s effect on the work force generally (or some portion of the work force), not solely about the decision’s effect on the employee himself,
  • The meeting presented the first opportunity for employees to address the decision, so the speaker had no opportunity to discuss the issue with other employee’s beforehand, and
  • Other evidence that a statement made in the presence of coworkers was made to initiate, induce, or prepare for group action – such as an express call for employees to act collectively.

As part of its observation that more recent decisions by the Board had improperly deviated from the Meyers standard, the Board pointed to several cases that concluded that an employee’s statements about certain subjects (such as wages, work schedules, and job security) were “inherently” concerted. As part of its effort to “restor[e]” the Meyers standard, the Board expressed its “interest[ ] in reconsidering this line of precedent in a future appropriate case.”

What Does this Mean for Employers?

 It is important not to over read the application of the Alstate decision. While the Board’s decision concluded that in the context of this statement by an employee to co-workers that he was not calling for group action or expressing a position on behalf of employees collectively, a careful fact based analysis remains critical in all cases.

On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.

Now, the same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case.

As we previously noted, participation in events such as these may be protected concerted activity under the National Labor Relations Act (the “Act”). When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In GC Memo 08-10, issued in 2008, the Board’s General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

However, even if employees’ participation in these mass demonstrations and strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to participate in Day Without Women activities – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “Policies Prohibiting ‘Insubordination or Other Disrespectful Conduct’ and ‘Boisterous or Disruptive Activity in the Workplace’ Struck Down by NLRB Majority.”

Following is an excerpt:

Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case 14-CA-145064), two members of a three-member NLRB panel upheld an August 7, 2015 decision by an Administrative Law Judge (“ALJ”) finding that an employer violated the National Labor Relations Act (“NLRA” or the “Act”) by maintaining overly broad handbook rules and terminating an employee who was engaged in “protected, concerted activity” when he called another employee and warned him that his job was in jeopardy.  Member Miscimarra concurred in part and dissented in part, arguing that the Board should overrule applicable precedent interpreting the Act.

Read the full post here.