NLRB Scales Back Employee Protections

Allen Smith, J.D. By Allen Smith, J.D. January 28, 2019

​Fewer employees—unionized and nonunionized—will be covered by the National Labor Relations Act due to a recent National Labor Relations Board (NLRB) decision limiting the definition of what constitutes "protected, concerted activity." The board also suggested that it may continue to chip away at the definition in coming decisions.

Section 7 of the act establishes the right of employees to engage in concerted activities for their mutual aid or protection. Concerted activity includes individual employees trying to encourage group action.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

Prior to the Jan. 11 ruling of Alstate Maintenance, an employee who protested in a meeting was presumed to be initiating group action. The board's recent decision held that this can't be assumed but instead should be determined by a fact-based inquiry that considers all evidence.

The ruling means "fewer employers will unwittingly fall victim to a strained concept that an individual acting alone in voicing a complaint might later be deemed to have been engaged in 'concerted activity' protected by the act," said Mark Kisicki, an attorney with Ogletree Deakins in Phoenix.

'Individual Griping' Unprotected

In Alstate, an airport baggage handler, or "skycap," who was asked to help a soccer team with its luggage, said in front of three other skycaps, "We did a similar job a year prior, and we didn't receive a tip for it." Alstate paid its skycaps between $3.90 and $4.15 an hour. Most of the skycaps' compensation came from tips, which sometimes totaled $150 per day per employee.

When the soccer team's van arrived, the skycaps at first walked away but then helped load the baggage. Even with the delay, the team's equipment and luggage were moved into the terminal in 12 minutes. The airline gave the skycaps an $83 group tip.

Alstate fired all four skycaps. Three of them were then offered jobs; the employee who had previously remarked on the unpaid tip was not. He claimed that he was unlawfully discharged for his remark.

However, the NLRB ruled that his statement was not covered under Section 7. "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 ['we']," the NLRB decided.

The NLRB's decision signaled that many "protected, concerted activity cases involving individual griping won't be considered. It gives employers a bit more confidence," said Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla.

Five Factors

The board set out five factors that support an inference that an employee was trying to initiate group action:

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

Not all five factors need to be present to support an inference that an employee is seeking to bring about group action, the NLRB noted.

Reaffirmation of Case Law or U-Turn?

"The main focus of the Alstate Maintenance decision is the question of when a single employee can be engaged in concerted activity, which usually requires the actions of two or more persons," said Jon Klinghoffer, an attorney with Goldberg Kohn in Chicago. The decision better positions employers to defend themselves from unfair labor practice charges if they decide to fire an employee, he added.

The board "reaffirmed the principle that many types of employee statements and complaints do not rise to the level of protected concerted activity under the National Labor Relations Act," said Philip Miscimarra, an attorney with Morgan Lewis in Washington, D.C. But "there is plenty of protected concerted activity in the National Labor Relations Act, notwithstanding the limits recognized by the NLRB in Alstate Maintenance."

However, in a dissent, board member Lauren McFerran wrote, "Against the weight of precedent, common sense and even a basic sensitivity to workplace realities, the majority concludes that workers generally do not seek to induce group action, and thereby exercise their right to engage in concerted activity under Section 7 of the act, when they spontaneously protest their working conditions."

More Firmly Entrenched Law May Be Uprooted Next

The board intimated that it may overturn decisions that have held that certain topics are inherently concerted—including discussions about wages, work schedules and job security—because these rulings bypass the need for a fact-based inquiry, Klinghoffer observed.

"If the board does so, it will be reversing long-established principles," Kisicki said. "To do so without second-guessing by the courts will require a clear articulation by the board that justifies such significant change."

For now, "employers should proceed cautiously when disciplining employees for actions taken in a group setting," according to Jay Dade, an attorney with Polsinelli in Kansas City, Mo. He said this remains true when an employee speaks up during meetings where the employer announces changes to terms and conditions of employment, such as work hours, benefits, break policies and wages.



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