On January 11, 2019, the National Labor Relations Board clarified and narrowed the standard for finding that an employee engaged in protected concerted activities under the National Labor Relations Act. See Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). In doing so, the board overturned a 2011 decision – WorldMark by Wyndham, 356 NLRB 765 (2011) – that held that an employee who protests at a group meeting is necessarily engaged in concerted protected activity.

Summary of decision

In Alstate, a manager approached airport baggage handlers (referred to as skycaps) and requested that they help unload a soccer team’s equipment. One of the skycaps, Trevor Greenidge, responded that “we did a similar job a year prior and we didn’t receive a tip.” When the soccer team’s equipment arrived, the skycaps walked away. The employer terminated Greenidge “for griping about not being tipped.” Greenidge contended that his comment regarding lack of tips (not the act of walking away from the unloading task) was protected concerted activity and thus his termination violated the Act.

The board rejected the employee’s argument, concluding that Greenidge’s conduct was neither concerted nor engaged in for mutual aid or protection. In reaching this conclusion, the board reaffirmed the standard for protected concerted activities derived from its earlier decisions in Meyers Industries, 268 NLRB 493 (1984) and Meyers Industries, 281 NLRB 882 (1986).

Under that standard, “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.” In addition, “individual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun.”

Applying this standard, the board found that Greenidge’s activity was not concerted because there was “no evidence that the tipping habits of soccer players (or anyone else) had been a topic of conversation among the skycaps prior to Greenidge’s statement.” Additionally, Greenidge’s statement did “not demonstrate that [he] was seeking to initiate or induce group action.”

Separately, the board concluded that Greenidge’s comment was not for mutual aid because “the amount of a tip given by an airline passenger to the skycap … is a matter between the passenger and the skycap, from which the … employer is essentially detached.” Moreover, there was no evidence that employees were “dissatisfied with the existing tipping arrangements or wanted them to be modified.”

In rejecting Greenidge’s argument, the board overturned the rule announced in WorldMark – i.e., an employee “who protests publicly in a group meeting is engaged in initiating group action.” This rule, according to the board, improperly jettisoned the requirement that concerted activity “be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

However, the board recognized that a statement at a group meeting can, based on the totality of circumstances, raise an inference that an employee is seeking to initiate group action. Facts that support such an inference include, but are not limited to:

  • The statement was made in a meeting called to announce a decision affecting terms or conditions of employment.
  • The employer’s announced decision affects multiple employees attending the meeting.
  • The employee who speaks in response to an employer announcement does so to protest, not merely to ask questions about how the decision has been or will be implemented.
  • The speaker protested the decision’s effect on the workforce generally or some portion of the workforce, not solely about its effect on the speaker.
  • The meeting presented the first opportunity for employees to address the employer’s decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

What’s the takeaway?

The board’s decision in Alstate makes clear that protected concerted activities require more than an expression of an individual grievance in the presence of other employees. Rather, to be concerted, an employee must act in concert or with others, or be seeking to induce group activity.

Additionally, the board stated that it is interested in reconsidering a related line of authority holding that employee statements about certain subjects (e.g., wages, schedules) are “inherently” concerted. Employers should keep a close eye on developments in this area so as to understand the scope of their authority in responding to intemperate employee complaints and in drafting policies on acceptable workplace behavior.