The National Labor Relations Board (NLRB) has had its hands full after a three-member Republican majority took over in late 2017. Since then, the Board has taken a number of steps to redress the regulatory overreach of the Obama administration.
One of the key policy corrections of the new NLRB is in the area of so-called protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Under that section, employees are granted the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” among other things.
According to the NLRB’s website, “[a]ctivity is ‘concerted’ if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is ‘protected’ if it concerns employees’ interests as employees.”
In the Obama era, the NLRB took an expansive view—to put it mildly—of what constituted protected concerted activity. The absurd lengths to which the Board stretched the law were highlighted in a U.S. Chamber report that described many common workplace policies deemed unlawful by the Obama NLRB.
The current Board majority, however, is reexamining the extent to which Section 7 protects certain behavior, and, in doing so, they are restoring a bit of sanity into the law. For example, the NLRB recently decided that an employer was justified in terminating an employee for complaining about a work assignment in front of a customer.
In that case, the employee in question was a skycap at JFK airport in New York who balked at assisting a German soccer team flying from the airport on Lufthansa, which considered the team a VIP customer. The employee’s supervisor assigned him and three other skycaps to help, but the employee complained that when he and his colleagues previously had to assist with a similar assignment they did not receive a tip. When two Lufthansa managers subsequently asked the skycaps to assist with the team’s luggage after it arrived, the skycaps allegedly walked away.
After being terminated for his behavior, the employee filed an unfair labor practice charge with the NLRB claiming Section 7 protection because he “spoke in the presence of other skycaps and a supervisor and included the word ‘we’ in his statement.” In rejecting the employee’s appeal, the Board observed, “[t]he applicable standard should not sanction an all-but-meaningless inquiry in which concertedness [sic] hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor.”
More importantly, the NLRB reversed its 2011 WorldMark by Wyndham decision, which held that protesting publicly in a group meeting was protected Section 7 activity. Citing former Board member Brian Hayes’ dissent in that case, the NLRB found that Worldmark “impermissibly conflat[ed] the concepts of group setting and group complaints.” The Board made clear that it intended to begin the process of restoring the longstanding standard for determining protected activity by overruling flawed decisions like WorldMark. That process should be welcome news for employers hoping to see balance restored to labor law. There are, however, still many more cases to go.