Being obnoxious can’t always be justified by an employee simply because the topics of wages and working conditions are raised in the process, the National Labor Relations Board (NLRB) recently decided, reversing yet another Obama-era board policy.
The new decision should make it easier for employers to discipline workers who engage in rude and angry behavior. The Obama-era NLRB in a string of decisions had expanded what employees were allowed to say and do to the point where it seemed that the only excluded behavior involved threats of violence.
The decisions sought to interpret a portion of the National Labor Relations Act of 1935 (NLRA) that established workers’ ability to engage in protected concerted activity (PCA) in the workplace to advance their collective economic interests. The goal is to prevent retaliation against employees, particularly when they are engaging in union organizing and protesting working conditions to management.
It has been common throughout the history of the labor movement for employers to react to organizing and other worker protection activities by engaging in retaliation, including firings. For example, the main character in the 1979 movie “Norma Rae” was fired after advocating for the union among her fellow workers in the cotton mill where she worked in the 1970s.
The NLRB case began in July 2013 when Trevor Greenidge, a skycap at New York’s JFK Airport, and several fellow skycaps were told by a supervisor to handle the luggage of a French soccer team, including 50-70 bags of equipment. Greenidge refused and in front of his coworkers told the supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” (Most of the skycaps’ income is derived from tips.)
Greenidge’s fellow skycaps present also refused and their employer then called in others to replace them. The balking skycaps were later fired and Greenidge’s attorney filed unfair labor practice charges with the NLRB, claiming that he had been engaged in activity protected under labor law when he made his comment about the French teams not tipping.
The current Republican board majority disagreed. First, the comment did not seek to initiate, induce, or prepare for group action. The majority concluded that Greenidge’s comment itself did not demonstrate that he was seeking to initiate or induce group action, and Greenidge had credibly testified during the hearing that his remark was “just a comment” that was not aimed at changing his employer’s policies or practices.
What Is Really Protected?
Prior to the Obama-era NLRB, to be concerted, an employee’s activity had to be with or on the authority of other employees, and not solely by and on behalf of himself. It also was held that concerted activity only occurred when individual employees sought to initiate or induce group action or where truly group complaints were brought to the attention of management.
In 2011, the Obama-era NLRB found that an employee who lodged a complaint in a group setting—without employees previously agreeing to act in concert with each other—was protected simply because of the group nature of the activity. Specifically, the NLRB held that an employee who protests publicly in a group meeting is engaged in initiating group action as a matter of law. That standard was expanded in future decisions to include angry outbursts and profanity-laden temper tantrums, as long as wages and working conditions were mentioned.
In its latest decision, the board laid out factors that might support a reasonable inference that, in making a statement or comment, an individual employee engaged in concerted activity—either by bringing a “truly group concern” to management’s attention or by initiating, inciting, or preparing for group action:
● The statement was made during an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment,
● The decision affects multiple employees attending the meeting,
● The employee who makes a comment in response to such an announcement does so to protest or complain about the decision—not merely to ask questions about how the decision will be implemented,
● The employee protests or complains about the decision’s effect on the workforce generally (or some portion of the workforce), not solely about the decision’s effect on the employee him/herself,
● The meeting presented the first opportunity for employees to address the decision, so the speaker had no opportunity to discuss the issue with other employees beforehand, and
● Other evidence that a statement made in the presence of coworkers was made to initiate, induce, or prepare for group action—such as an express call for employees to act collectively.
The decision is certainly a welcome step towards a level playing field for employers who have been patiently waiting for the current NLRB to overturn a decade of pro-labor precedent, says attorney Reyburn W. Lominack III of the law firm Fisher Phillips “By tightening the critical ‘concerted activity’ standard, the board has restored a measure of balance to the equation.”
However, he warns employers to still be cautious when disciplining employees for activities carried out in a group setting, particularly where those activities occur during group meetings at which management is announcing changes to terms and conditions of employment. “Depending on what is said and how it is communicated, some particular matters could still be protected by federal labor law,” Lominack stresses.