Workers who complain in a group setting will no longer be presumed to be engaged in “protected concerted activity” under the National Labor Relations Act based on a new decision issued last month. The decision means that fewer employees in the workplace – whether unionized or not – will be covered by the protections of the NLRA.
The case involved a skycap at JFK Airport named Trevor Greenidge. After his supervisor told him that the skycaps had been requested to assist with a soccer team’s equipment, Mr. Greenidge complained in front of three other skycaps, “We did a similar job a year prior and we didn’t receive a tip for it.” His supervisor explained to managers from the airline and the terminal that the skycaps did not want to do the job because they expected a small tip. The managers had baggage handlers from inside the terminal assist with the soccer team’s equipment. After the baggage handlers had finished a large portion of the work, Mr. Greenidge and the three other skycaps helped them complete the job. Mr. Greenidge and the other three skycaps were later terminated for refusing to provide services to a client.
A regional office of the NLRB issued a complaint alleging that Mr. Greenidge had been terminated for engaging in protected, concerted activity based on the statement he made to his supervisor. Ultimately, the NLRB found that Mr. Greenidge’s comment was not concerted activity because there was no evidence that Mr. Greenidge was bringing a group complaint to his supervisor’s attention. The NLRB went on to state that the use of the word “we” did not supply evidence of group activity. Instead, the NLRB found that Mr. Greenidge’s statement was merely an offhand gripe and did not support a finding that Greenidge was seeking “to improve terms and conditions of employment.”
The decision represents a departure from prior NLRB precedent, which held that an employee who protests publicly in a group meeting is engaged in initiating group action. Now, in order to be considered concerted activity, the NLRB explained that an employee’s statement must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce, or prepare for group action. The NLRB listed the following relevant factors in making this fact-based determination; (i) the statement was made in an employee meeting called by the employer to announce a decision affecting a term or condition of employment; (ii) the decision affects multiple employees attending the meeting; (iii) the employee who speaks up did so to protest or complain about the decision, not to ask questions about how the decision will be implemented; (iv) the speaker protested or complained about the decision’s effect on the workforce, not only on the speaker; and (v) the meeting presented the first opportunity employees had to address the decision. All of these factors do not need to be present for there to be concerted activity.
This decision is also a significant reversal from a decision the NLRB made only a few years ago. Specifically in 2014, the NLRB held that an employer had violated the NLRA by discharging two employees who participated in a Facebook post by a former employee. One of the employees had simply liked the post and the other had commented that the owner was an “a**hole.”
In this latest decision, the NLRB not only narrowed the definition of concerted activity, but also stated that it would be interested in reconsidering precedent regarding other subjects that it had previously found to be inherently concerted, including, discussions about wages and schedules. Look for the NLRB to further reassess and restrict what constitutes concerted activity.
Akerman Labor & Employment attorneys will continue to monitor future developments in this area.
