"We Means I" Rules NLRB
By Lehr Middlebrooks Vreeland & Thompson, P.C.
February 26, 2019
Section 7 of the National Labor Relations Act gives employees the right to “engage in concerted activity for the purposes...of mutual aid or protection.” The issue in the case of Alstate Maintenance, LLC (Jan. 11, 2019) is whether an employee who complained on behalf of others engaged in protected concerted activity resulting in an illegal discharge.
The employer provides baggage services to passengers at John F. Kennedy International Airport in New York. Employee Trevor Greenidge worked as a skycap. In July 2013, Greenidge and other skycaps were directed by a manager to unload baggage from a soccer team’s van. Greenidge stated to the manager that “we did a similar job a year prior and we didn’t receive a tip for it.” The manager again directed Greenidge and his fellow skycaps to assist in unloading the van, but they refused to do so and walked away. Ultimately, Greenidge and the others returned to complete the job. However, their actions were reported to the customer service supervisor, resulting in Greenidge and his fellow skycaps’ termination. Greenidge filed an unfair labor practice charge, alleging that he was terminated because he engaged in protected concerted activity – speaking up on behalf of his fellow skycaps not to unload the van because of the lack of tipping.
The NLRB upheld the Administrative Law Judge’s dismissal of the complaint, stating that although Greenidge spoke in terms of “we,” he was not engaged in concerted activity – he spoke for himself and not on behalf of others nor to engage others in protected activity. The Board stated that his complaint about tipping was not a group complaint and it was not attempting to induce action by other skycaps. Interestingly, his comments induced other skycaps to act, but according to the NLRB, Greenidge’s complaint was a personal gripe and not one on behalf of others or to motivate others.
The NLRB overruled a more sweeping protection of employee Section 7 rights issued by the Obama-era NLRB case Wyndham Vacation Ownership d/b/a WorldMark by Wyndham (2011). In doing, so, the NLRB stated that “to be concerted activity, an individual employee’s statement to a supervisor or manager 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 five factors to consider whether an individual’s actions were a personal gripe or on behalf or to induce others:
1. The statement was made at an employee meeting where there was an announcement regarding wages, and conditions of employment.
2. The decision by the employer affected multiple employees who attended the meeting.
3. The employee who spoke up did so not ask questions, but to voice either opposition to or a complaint about the decision.
4. The employee’s comments included the impact of the employer’s actions on other employees, not just the employee who raised it.
5. The meeting was the first situation where employees became aware of the employer’s decision, so there was not an opportunity for the speaker to communicate about it to other employees prior to the meeting.
The Board also said that it would reconsider prior (again, Obama-era NLRB) decisions where the Board had ruled that statements about wages, schedules and job security were “inherently” protected and concerted under Section 7.
This decision overall is good news for employers. The NLRB has been the go-to agency for employees who believe that they have not been treated fairly, but where there is not a basis to claim discrimination based upon protected class. In order for employers to evaluate whether employee conduct or comments are protected, consider whether the employee truly spoke on behalf or others or to motivate others to act in support of the employee’s position. If neither is the case, then the employee’s comments are personal and not protected.
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