Board Limits Definition of “Concerted” under Section 7 of the NLRA

Section 7 of the Act gives employees the right to engage in protected “concerted” activities.  Concerted activity includes actions taken by two or more employees, as well as actions taken by an individual employee on behalf of others.  Conversely, activity by an individual employee for his or her own personal benefit is not concerted activity, and is therefore not protected under the Act.

In Alstate Maintenance, LLC,[1] an employer told four skycaps working at an airport to assist a soccer team with its luggage and equipment. One of the skycaps responded, “We did a similar job a year prior and we didn’t receive a tip for it.” Thereafter, the four skycaps temporarily refused to assist the soccer team with the equipment. The employer discharged the skycap for making “comments about the job . . . in front of other skycaps.” In a 3-1 decision, the Board held that the employer did not violate the Act because the skycap’s complaint in the presence of other skycaps and a supervisor about not being tipped was not concerted activity even though he used the plural pronoun “we.” 

The Board majority provided two situations where an individual’s statement to management is concerted activity.  First, an individual’s statement to a supervisor is concerted activity if “there is evidence of ‘group activities’—e.g., prior or contemporaneous discussion of the concern between or among members of the workforce.” The Board found there was no evidence of prior or contemporaneous discussion among employees about tipping. Second, an individual’s statement is concerted activity if the statement is intended to initiate or induce group action. The Board found the skycap’s comment was not intended to initiate group action even though, as the dissent pointed out, the comment objectively did induce group action, i.e., the skycaps temporarily refused to handle the equipment.

The Board also expressly overturned the Obama Board’s decision in Worldmark By Wyndham[2]— which the majority characterized as protecting any individual complaint carried out in front of other employees — and claimed it was returning to the standards set forth in the Board’s decisions in Meyers Industries.[3]

In her dissent, Member McFerran criticized the majority’s opinion for being inconsistent with Meyers and “imposing sharp new restrictions (unsupported by precedent) on what counts as ‘concerted’ and ‘mutual aid or protection’ for purposes of Section 7.”  Indeed, the majority signaled in a footnote that it would revisit Board cases from the last thirty years to determine whether those decisions are in conflict with Meyers.

[1]           Alstate Maintenance, LLC, 367 NLRB No. 68, 2019 LRRM (BNA) 10222 (Jan. 11, 2019).

[2]           Worldmark By Wyndham, 356 NLRB 765, 190 LRRM (BNA) 1121 (2011).

[3]           Meyers Industries, 268 NLRB 493, 115 LRRM (BNA) 1025 (1984) (Meyers I); 281 NLRB 882, 123 LRRM (BNA) 1137 (1986) (Meyers II).