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Legal Update

    Human Resources Group of West Michigan

    Legal Update – February 2019

    By

    Nathan D. Plantinga and Blake C. Padget

    Miller Johnson

    Trump NLRB Delivers Another Victory for Employers

    The National Labor Relations Board continues to roll back some of its more employee friendly decisions issued during the Obama administration, including what many considered an overly broad interpretation of what constitutes protected concerted activity under Section 7 of the National Labor Relations Act.  The case is Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).

    To understand the impact of Alstate itself, it will help to understand the rule under the Obama era NLRB.  In 2011, the NLRB decided Worldmark By Wyndham, 356 NLRB 765 (2011).  In Worldmark, the Vice President of the company had approached an employee, Gerard Foley, to discuss a new company dress code requiring that all employees wear their shirts tucked in.  Foley, who was in the presence of two co-workers, questioned the policy change.  Foley made several remarks including:  “It is pretty restrictive. You know, I might not want to tuck in my shirt”; “I didn’t sign up for this crap”; and “I don’t need the money.”  By the end of this exchange, about seven or eight sales representatives had gathered around Foley.  Afterwards, a supervisor called Foley and one of his co-workers into his office to discuss the matter.  Foley and his co-worker apologized for their behavior and they were instructed to return to work.  Upon exiting the meeting, Foley thanked his co-worker for standing up for him, and his co-worker mentioned that it was a stupid thing to do.

    A few days after the incident, the company issued Foley a written warning, disciplining him for his back and forth with his supervisor over the new dress code.  Foley challenged this written warning.  Foley claimed his discipline was unlawful because his comments qualified as protected concerted activity.  As you can guess, the dispute ultimately ended up in front of the Board.  Prior to Worldmark, the Board’s determination of whether Foley had engaged in protected concerted activity would have been a factual question based on a totality of the evidence.  However, the Obama Board took a different approach.

     Without expressly overruling previous decisions, the Board created a per se rule that “an employee who protests publicly in a group meeting is engaged in initiating group action.” Worldmark By Wyndham, 356 NLRB 765, 766 (2011).  This meant that every single employee who protested publicly in a group meeting was engaged in protected concerted activity.  Because Foley had protested in a group meeting, he was engaging in protected concerted activity, making his discipline unlawful. This per se rule was considered by many to be too broad of an interpretation.  Luckily for employers, this changed with the Board’s Alstate decision.

    So what is the Alstate decision about? Alstate involved an employee, Trevor Greenidge, who worked as a skycap at JFK international Airport.  As a skycap, Mr. Greenidge was supposed to assist arriving airline passengers with their luggage outside the entrance terminal.  On the date in question, a supervisor informed Greenidge that a soccer team had requested assistance with their luggage. Greenidge responded, “[w]e did a similar job a year prior and we didn’t receive a tip for it,” and he walked away.  The skycaps, including Greenidge, initially refused to assist with the luggage.  They eventually acquiesced after the baggage handlers had nearly completed all of the work.  All of the skycaps, including Greenidge, were subsequently discharged.  In his discharge letter, his employer noted that part of the reasoning for Mr. Greenidge’s discharge was the comments he made about the lack of tips in front of other skycaps and his manager.

     Greenidge challenged his discharge as violating Section 8(a)(1) of the National Labor Relations Act.  Greenidge’s claim was that his comments about the lack of tips qualified as protected concerted activity.  As noted above, the NLRB found that there had been no violation of Section 8(a)(1) because Mr. Greenidge’s comments did not qualify as protected concerted activity. In the course of this decision, the Board overruled Worldmark and the per se rule it created.  

    So, what is the new rule regarding protected concerted activity?  Well, the new rule is really the old rule.  Prior to the Obama administration and its Worldmark decision, the Board had articulated a standard that defined what qualified as concerted activity.  This was done in the Meyers decisions.[1]  Under this standard, “to find an employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  For an individual this occurred in two ways:  1) the individual is bringing truly group complaints to the attention of management; or 2) the individual was attempting to induce group action.  We will take these two points individually.

    First, when is an individual employee bringing a group complaint?  Under the new rule, there needs to be evidence of “group activities” based on the totality of the evidence.  For example, group activities could be “prior or contemporaneous discussion of the concern between or among members of the workforce.”  Had Greenidge discussed the tip issue with his co-workers before bringing it to the attention of management, his statement might have qualified as concerted activity.  Importantly, the individual employee need not be “designated” by the group to bring this complaint to the attention of management.  There just has to be evidence of group activities.

    Second, when is an individual attempting to induce group action?  Basically, an individual must make his or her comments with “the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees.”  Put another way, “activity which consists of mere talk must, in order to be protected, be talk looking toward group action . . . .  [I]f it looks forward to no action at all, it is more than likely to be mere ‘griping.’”  In the Alstate decision, the Board said Greenidge was merely complaining, not trying to induce group action.

    Besides the above rules about whether an individual’s activities are “concerted,” the Board also clarified that protected concerted activity must be undertaken for the purpose of mutual aid or protection.  Although the Board did not discuss this requirement at length, it noted that for comments to be for mutual aid and protection, they must relate to wages, hours, or other terms and conditions of employment.  This is a bit of change from past decisions where this second prong was sometimes overlooked by the Board.

    Last, it is important that you understand what Alstate does not mean.  While it is certainly a victory for employers, employers can still find themselves in trouble if they are disciplining an individual employee exercising his or her Section 7 rights.  So remember, Alstate simply got rid of the Worldmark per se rule that “an employee who protests publicly in a group meeting is engaged in initiating group action.”  Worldmark, 356 NLRB 765, 766 (2011).  So while there is no longer a per se rule, an employee who protests publicly in a group meeting may be engaged in initiating group action.  An employer must look to the Meyers standard and make a case by case determination, just as the Board will.

    [1] Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985); Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

    For questions about this article or any other matter, please contact the authors:  Nathan D. Plantinga (616) 831-1773, plantingan@millerjohnson.com or Blake C. Padget (269) 226-2953, padgetb@millerjohnson.com.

     

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