After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the team’s equipment arrived, airline managers motioned for the charging party and three co-workers to assist. Instead, they walked away and did not return until after baggage handlers from inside the airport terminal had done the bulk of the work. That evening, one of the airline managers called Alstate to complain about subpar customer service, which ultimately resulted in the termination of Greenidge and his three coworkers.
As we have discussed on multiple occasions in this blog as the Board expanded Section 7 rights during the Obama administration, employees have the right under Section 7 of the National Labor Relations Act to engage in concerted activities for the purpose of mutual aid or protection. In support of its argument that Greenidge’s comment to his supervisor was protected Section 7 activity, counsel for the General Counsel argued that Greenidge’s comment qualified as concerted activity because he made it “in a group setting . . . in the presence of his coworkers and [their supervisor] and used the first-person plural pronoun ‘we.’” The Board, however, rejected any inference that Greenidge’s comment was not concerted activity and, in any event, was not made for the purpose of mutual aid or protection. Instead, the Board held that his comment about the soccer team’s tipping habits was an individual gripe even though made in the presence of his coworkers and even though his coworkers ultimately joined him in initially ignoring the soccer team upon its arrival.
Overruling Obama Board precedent set in the Worldmark by Wyndham case in 2011, the Board held that the fact that a statement is made at a meeting, in a group setting or with other employees present will not automatically make the statement concerted activity. Rather, in order to be considered 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 Board then identified the following factors as tending to support such an inference:
- 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 (as in WorldMark) 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
- 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
Responding to concerns raised in the dissenting opinion, the Board stated in a footnote that it was “making clear” that these are merely “factors and not necessary elements” and that the “concertedness determination remains a factual one based on the totality of the evidence.”
While the Alstate decision is welcome news to employers who had grown accustomed to ever expansive Board decisions on Section 7 rights, employers should also recognize that Alstate demonstrates the fickle nature of Board precedent. Greenidge was terminated in July 2013 and this decision follows six years later. Do any of us really want to take the chance that a termination decision made today will be supported by a newly constituted Board in 2025? Cautious employers will recognize that the Alstate Board described the facts of this case as “borderline”, and will continue to carefully evaluate all of the circumstances under which employee comments and activities arise before making termination or discipline decisions.