The National Labor Relations Act protects employees—even those in non-union workplaces—engaged in protected concerted activity for the purposes of mutual aid and protection. But what does “concerted” activity mean? A recent National Labor Relations Board decision, Alstate Maintenance, 367 NLRB No. 68, helps define the contours of the term.
In Alstate, the employer provided skycap services at an airport. Passenger tips made up the biggest part of the skycaps’ compensation. The issue in this case arose when a supervisor instructed a group of skycaps to assist with a soccer team’s equipment and a skycap responded—in front of other skycaps—that “we did a similar job a year prior and we didn’t get a tip for it.” After the comment, the skycaps initially refused to assist in loading the equipment, but later did so. Alstate fired the employee who had complained about the lack of tip.
In its analysis, the Board reiterated the principle that an action by an employee is only concerted if the employee brings a group complaint to management or if the employee tries to induce group action. Considering the facts before it, the Board concluded that the skycap had not engaged in concerted activity. The fact that the employee had indicated that other employees had not received a tip either did not communicate that the group had previously discussed the soccer team’s failure to tip in the prior year. Rather, it merely described what had happened to the group. There was no indication that the employees had discussed it amongst themselves prior to the statement. Further, there was no evidence that the employee was trying to induce group activity.
In reaching its decision, the court went back to the rule that the fact that a complaint is made in front of a group of employees does not in and of itself indicate that the employee was engaging in concerted activity. In doing so, it overruled an Obama-era decision that conflicted with the prior rule.
The court also identified factors that would tend to support drawing an inference of concerted activity. The factors include that:
- the statement was made in 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 speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
- the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and
- the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.
The court noted that, “of course,” other factors may be relevant, such as an express call for employees to act collectively.