Seyfarth Synopsis: The NLRB has overturned a previous decision defining any employee's protest in a group setting as protected concerted activity. In Alstate Maintenance, the Board has sought to adhere to the principles defining protected concerted activity set forth in the Meyers decisions.
The Board majority has shown no signs of slowing in 2019 as it continues to drive national labor policy. The Board's recent decision in Alstate Maintenance and Trevor Greenidge, Case 29–CA–117101 (Jan. 11, 2019) (https://www.nlrb.gov/case/29-CA-117101) illustrates the Board's continuing trend of limiting expansive precedents.
In Alstate Maintenance, the Region issued a complaint alleging that Respondent Alstate Maintenance violated the Section 8(a)(1) of the NLRA when it discharged its employee, Trevor Greenidge. Greenidge was employed as a skycap at an international airport, and part of his responsibilities included assisting arriving passengers with their luggage. On July 17, 2013, Greenidge's supervisor assigned him to assist with a soccer team's equipment. Greenidge complained that, "we did a similar job a year prior and we didn't receive a tip for it." When the van containing the team's equipment arrived, the skycaps refused to assist with moving baggage. The skycaps were subsequently discharged.
In its complaint, the Region contended that Greenidge's comment to his supervisor constituted protected concerted activity under the NLRA. Particularly, the Region argued that Greenidge's use of the pronoun "we" in a group setting compelled a finding that his activity was concerted. The Administrative Law Judge reviewing the case disagreed and dismissed the Region's complaint. The General Counsel appealed.
On appeal, the Board focused its review on whether Greenidge's activities were concerted. In its analysis, the Board reiterated the standards announced in the Meyers decisions. The Board explained that for activity to be concerted, it must assert a truly group complaint and appear to be intended to induce group action. The Board noted that the decisions following the Meyers cases evaluated the totality of the circumstances to determine whether the activity was concerted. Some circumstances that counseled in favor of a finding of concerted activity included whether the comment was made in a group setting, whether the concerns are personal or on behalf of a group, and whether the meeting presented the first opportunity to address the employer's policy. General Counsel relied on a Board decision in Worldmark by Wyndham ("Worldmark"), where the Board found that an employee's protest in the context of a group meeting rendered the complaint per se concerted activity.
After reviewing a line of decisions where the Board applied the Meyers standards, the Board found Worldmark's precedent problematic. The Board reasoned that because Worldmark equated protest in a group setting with per se concerted activity, the decision ran afoul of Meyers because it failed to require consideration of the totality of the circumstances. Accordingly, the Board overruled Worldmark.
Applying Meyers to the instant case, the Board first found the record devoid of any evidence of a group complaint, and that Greenidge's use of the word "we" was insufficient to find an intent to bring a complaint on behalf of a group. Second, the Board explained that the statement did not demonstrate that Greenidge was seeking to induce group activity, and that Greenidge admitted he was not attempting to change Respondent's policy. Thus, because Greenidge's complaint was not concerted, it was not protected under the NLRA.
The Board's decision provides further clarification for employers approaching employee complaints in a group setting. The decision indicates that the Board will take a more flexible approach of considering the totality of the circumstances, rather than taking the narrow approach urged by Worldmark of finding any complaints in a group setting to constitute per se concerted activity.
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