The NLRB Vastly Expands the Parameters of Protected Concerted Activity

By Fiona Ong and Evan Conder - Shawe Rosenthal LLP

September 1, 2023

In two cases issued on August 31, 2023, the National Labor Relations Board greatly expanded the universe of employee activity protected by the National Labor Relations Act. This is the latest in a week-long flurry of pro-union/worker cases that have left employers, both unionized and not, reeling, including restrictions on unionized employers’ ability to act unilaterally, employers being subject to collective bargaining orders without a secret-ballot election, an expedited timeline for secret ballot elections, and affirmation of a test for determining when adverse action is motivated by protected conduct.

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” This is otherwise known as “protected concerted activity.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for any employer, including non-unionized ones, “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

The definition of what actually constitutes protected concerted activity has expanded and contracted over the years with each change in Presidential administration. Unsurprisingly, the Trump administration took a narrow view of the definition. Just as unsurprisingly, the Biden Board’s view is much broader – as demonstrated in these two cases.

Lone Protests May Be Protected Concerted Activity

In the first case, Miller Plastic Products, Inc., the Board found that an employee’s lone protest regarding the Company’s decision to remain open during the COVID-19 pandemic constituted protected activity under the NLRA.

Background. The Board first articulated the standard to determine whether an employee engaged in concerted activity intended to induce group action in the 1986 case of Meyers Industries. There, the Board stated that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.”

In 2019, in Alstate Maintenance, LLC, the Trump Board addressed whether lone protests could be considered concerted activity. It narrowed the totality of circumstances test, and instead set forth a checklist of factors to determine whether the actions of a single employee constituted concerted activity. In that case, the employee complained to management in front of his coworkers about a customer’s cheap tipping, which was followed by the coworkers collectively walking away when the customer appeared and asked for assistance. The Board determined that the employee’s statement was “purely a personal grievance” and not “truly a group complaint” that would constitute protected activity.

In the current case, the employer asserted that it terminated the employee because of his poor performance and violations of its policies, which included his poor attitude after voicing concerns that the business should be shut down at the onset of the COVID-19 pandemic. At an all-hands meeting, the employee blurted out that he did not think employees should be working in response to the COO’s statement that the company would continue operations throughout the COVID pandemic as an essential business. The employee also later told a supervisor that he thought they should close after another employee had been sent home because his wife had contracted COVID.

Reversion to the Totality of Circumstances Test.

Now, the Biden Board has reverted to its “totality of circumstances” test, overturning Alstate Maintenance, LLC. In the Board’s view, the “’object of initiating’ and ‘relation to group action’ could not be clearer.” The Board found that the Alstate decision “improperly narrowed the definition of concerted activity by imposing a limited list of factors.” Rather, the Board now takes a “holistic” approach, under which a wide range of evidence is considered to determine if the speech can be viewed to induce group action. The Board reaffirmed that “activity that at inception involves only a speaker and a listener can be concerted, ‘for such activity is an indispensable preliminary step to employee self-organization.’” Here, the Board found the employee’s comments to be protected concerted activity because they sought to bring “truly group complaints to the attention of management.”

Takeaways for Employers. Employers should be careful when seeking to discipline an employee for conduct or attitude in connection with the employee’s complaint about working conditions or some term of condition of employment. While truly personal grievances are not protected, it is clear that this Board takes a broad view of when a personal complaint could be construed to raise issues on behalf of other employees as well.

Employees’ Advocacy for Nonemployees Is Protected Concerted Activity

In the second case, American Federation for Children, Inc., the Board found that concerted activity by employees on behalf of nonemployees is protected concerted activity when it can also benefit the employees.

Background. In the 2019 case of Amnesty International, the Trump Board categorically found that mutual aid or protection did not include actions by employees on behalf of nonemployees in the same workplace.

In the instant case, an employee sought her coworkers’ support in ensuring the rehire of a highly-valued former coworker who was awaiting renewal of her work authorization status. Several employees informed management that, in the course of her advocacy for the coworker, the employee had called one of the company’s officials “racist.” Faced with termination for creating a “toxic atmosphere,” the employee resigned. The company allegedly then took action to interfere with her new employment.

The Board made several preliminary findings of interest. First, it determined that the employee’s solo efforts constituted concerted activity because she specifically sought to induce fellow employees to join her in advocating for the former employee’s rehire. Next, the Board found that the former employee was, in fact, an employee under the NLRA – because she sought to be rehired to her former position, she should be considered a job applicant, and it is “well-established” that job applicants are employees. The Board further noted that her immigration status was immaterial to her employee status, as it did not prevent her from applying for employment. Thus, the employee’s advocacy was on behalf of another employee, meaning that it was for their mutual aid or protection, as both (and others) would benefit from her return.

The Solidarity Principle. Although it seems the Board could have ended its analysis at that point, it seized the opportunity to overturn Amnesty International on the premise that the former co-worker’s employee status was in question. According to the Board, under longstanding precedent, the scope of mutual aid or protection covered the efforts of employees to help themselves by helping non-employees (i.e. the “solidarity principle”); it did not include efforts that would benefit only nonemployees. The Board found that the Amnesty International case failed to recognize this precedent and failed to understand that, by helping nonemployees, employees also aid and protect themselves – “whether by directly improving their own terms and conditions of employment or by creating the possibility of future reciprocal support from others in their efforts to better working conditions.” As applied to the current case, the actions of the employee in seeking the rehire of a former employee constituted protected concerted activity, as it would benefit all employees.

Takeaways for Employers. Employers should understand that the concept of protected concerted activity will include employee actions on behalf of non-employees, if there is any ostensible argument that such activity could benefit employees either now or in the future, even through reciprocal support. Employers should also note that the Board will find employee status regardless of immigration status, and that it will cast a wide net over who should be considered an “employee” for purposes of the NLRA.

www.shawe.com