Although many nonunion employers do not see the National Labor Relations Board (NLRB) as impacting them, they are often surprised when an unfair labor practice charge (ULP) is issued against them.  These employers think the NLRB only protects union activity, but that’s not the case.  The NLRB protects all workers’ rights in the workplace and is the de facto union for nonunion workers.  Although in the past, ULPs have been fairly rare, they are rising today as workers become more aware of their rights and are more invested in their futures.

Section 7 of the National Labor Relations Act (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."  The “to engage in other concerted activities” has been the language that gave rise to the expansiveness of the NLRB’s jurisdiction.

The interpretation of “concerted activity” is dependent on the administration in power.  Prior to 2019, the standard was essentially the totality of the circumstances, giving the NLRB broad discretion to hold anything as concerted action, including during the Obama administration, the overturning of the firing of an employee who was swearing at and disrespectful to managers, saying that other employees may be thinking the same. 

Under the 2019 Alstate Maintenance, LLC decision, the standard was updated to more clearly provide guidance for employers.  Specifically, The NLRB identified five factors for analyzing whether an employee was attempting to induce group action:

1. The employee's 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.
2. The employer's decision that was announced affected multiple employees attending the meeting.
3. The employee who spoke up in response to the announcement did so to complain about the decision, not merely to ask questions about how the decision would be implemented.
4. The speaking employee protested the decision's effect on the workforce, not solely its impact on the speaking employee.
5. The meeting presented the first opportunity employees had to address the decision.

In this case, Greenidge was working with three other skycaps when a manager directed them to assist with a soccer team’s equipment. Greenidge remarked, “We did a similar job a year prior, and we didn’t receive a tip for it.” When the van with the team’s equipment arrived, a manager waved the skycaps over to the van to assist, but Greenidge and the other skycaps walked away. Baggage handlers from inside the terminal began assisting with the equipment before Greenidge and the other skycaps helped finish the job. Following this incident, a manager informed the skycaps’ supervisor of the subpar customer service, and the employer fired Greenidge and the other three skycaps.  They filed an Unfair Labor Practice Charge.

The NLRB found that even if an employee states a gripe referencing coworkers through the plural pronoun “we,” it is not necessarily protected and may be a valid basis for discipline or discharge and upheld the discharge.

However, more recently, the NLRB brought back the old standard.  The Miller Plastics (August 31, 2023) decision returned to a standard that became more vague in operation.  The case is similar to Alstate in that an individual employee claimed that they were terminated for voicing their concerns about company policy regarding COVID-19 protocols. Relying on Alstate, Miller Plastics challenged the employee's charge by arguing that his concerns were individual gripes that were not intended to induce group activity.

The NLRB disagreed and overturned the Alstate decision. The NLRB called for a broad interpretation of the claimed concerted activity based on the context in which the complaint was made. Underlying this change was the NLRB's belief that a thorough review of the evidence was necessary to determine whether an employee's individual protest was linked to self-organization and group activity.  In other words, they would look at the totality of the circumstances to make a determination.  As such, employers have the scales tipped against them.

It is important that HR train managers in how to investigate complaints, document them, and prepare for the worst – a fired employee may have to be reinstated and continue working for that manager.

ASE Connect

Workplace Investigations Course

ASE offers a class, Workplace Investigations, that teaches attendees how to recognize notice of a complaint, how to conduct an efficient and legally compliant workplace investigation, how to follow through with discipline that may result, how to deal with “he-said-she-said situations and how to help affected staff move forward after the matter.

In Person-Novi: Workplace Investigations
May 22, 2024
1:00 p.m. – 4:00 p.m.
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Source:  Venable LLP 11/27/23, Ogletree 1/22/19