Where up is down and left means right, talking to yourself may now qualify as “concerted” activity under the current NLRB. In Berkeley Preparatory School, Inc. and Kathi Grau, a teacher at a private, non-profit, religious school yelled to herself “THIS PLACE SUCKS!” after being asked by another employee to provide proper documentation for reimbursement of expenses and third-party services.
In response to a Regional Director’s decision to issue a complaint in the case, the school filed a Motion for Summary Judgment arguing, among other things, that section 7 of the NLRA protects “concerted” activity; in other words, activity untaken by or on behalf of two or more employees, or by a single employee to initiate or prepare for group activity. Applying this reasoning, the school claimed that the teacher’s statement was made only on behalf of herself and to herself. As the statement was the result of the teacher’s own personal frustration at the school’s reimbursement policy, it was therefore not meant to initiate or prepare for group action. To support this, the school pointed to the facts that the teacher was alone, made the comment to herself, and no other faculty members had issues with the school’s reimbursement policy. Furthermore, the school noted that as a private, religious entity, it has the right to maintain certain standards on workplace civility with regard to vulgar outbursts.
In a shockingly brief order, the Board majority denied the school’s Motion for Summary Judgment, holding that the motion was insufficient to even warrant a substantive response from the NLRB regional office.
Although a decision on the merits of this case, including whether this teacher’s yelled statement to herself constitutes “concerted” activity won’t come for some time, employers should take note of the bounds that this Board is willing to stretch the definition of “concerted.”
For those religious-affiliated employers that consider themselves outside of the Board’s jurisdictional reach, consider that the school’s motion also made a comprehensive argument that the Board lacked jurisdiction over it because it is a religious educational institution, and thus, is exempt. Despite the level of detail and number of attachments in support of its argument, as with regard to the “concerted” argument, the Board majority held that the motion was insufficient to warrant a substantive response.
