A recent NLRB decision will likely result in a significant expansion of the activity the NLRA protects. The case, Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. No. 12 (2014) (pdf), arose from a complaint about sexual harassment. A female employee – Elias – placed a message on a whiteboard at the request of her supervisor. A word in that message was subsequently changed to an inappropriate term for the workplace, and a drawing of a peanut or worm urinating on the employee’s name was added. 

Upon seeing her changed message, Elias told her supervisor that she wanted to file a sexual harassment complaint. She also wrote out the message on a piece of paper and asked, albeit apparently not in a very polite or subtle fashion, a supervisor and two other co-workers to sign that piece of a paper as “witnesses” that she had copied down the words and drawing correctly. While the other employees did so, one later complained to the employer that she was “bullied” into signing the paper by Elias. Another employee later testified that she signed only because Elias was making a scene in front of customers. No one signed the paper intending to take group action.

The employer investigated the complaint, questioning Elias about, among other things, the whiteboard writing as well as her request to her co-workers to sign the paper. The employer instructed Elias not to obtain any additional statements while the employer investigated her complaint. The employer’s investigation identified the employee who had altered Elias’ whiteboard message and the employer disciplined him. It did not discipline Elias for the alleged bullying or take any other adverse actions against any other employees.

The NLRB majority ruled in favor of the employer. In the employer’s victory, however, lies a significant concern for other employers. This is because the NLRB found that Elias was engaged in “concerted” activity for the “purpose of mutual aid or protection,” conduct that the NLRA protects.  Merely soliciting her co-workers to sign the paper made her actions “concerted.” That was so even if:

  • Her co-workers didn’t agree with her complaint;
  • The solicited employee was uncomfortable with the solicitation; or
  • Elias was the only immediate beneficiary of the solicitation.

The majority further held that the conduct was for the purpose of “mutual aid or protection” because Elias sought to invoke the protection of a law that benefits employees:  the prohibition against sexual harassment in the workplace. It did not matter that Elias was confronting activity directed solely at her. Invoking the “solidarity principle,” the majority held that the solicited employees had an interest in helping Elias because next time “it could be one of them….” Thus, there was an “implicit promise of future reciprocation” by Elias that she would help the employees that she solicited in the future if they experienced any workplace problems.

A better outcome for employers would have been to decide the case as Member Miscimarra (R) reasoned in his separate opinion. He would have found that Elias’ conduct was neither concerted nor for the purpose of mutual aid or protection. No one intended to take group action later and the paper Elias had her supervisor and co-workers sign was merely an affirmation of what was on the whiteboard, not a petition or similar document to be shared with management. 

Member Miscimarra also criticized the “solidarity” principle the majority cited. That principle presumes what the NLRA requires the employee to prove: that the conduct was for the purpose of mutual aid or protection. Member Miscimarra found no such proof in the record because Elias’ purpose in pursuing signatures on her handwritten transcription “pertained solely to her individual complaint that she presented on behalf of herself.”

Finally, in yet another opinion, Member Johnson (R) found that Elias’ conduct was concerted and that it was also for mutual aid or protection based on the specific facts of the case. Elias solicited other employees about the offensive whiteboard display, which solicitation sought to induce group action. The solicitation was also for the purpose of mutual aid or protection because she “intended to bring to management’s attention conduct that was personally directed at her but visible and objectively offensive to other female employees.” 

Member Johnson, however, disagreed with the majority’s use of the “solidarity” principle. He criticized the majority’s view as based on “subjective assumptions” and having “no limiting principle.” Rather than make such assumptions, Member Johnson would require actual proof of the purpose of the employee’s conduct.

The numerous and lengthy opinions in this case are a prelude to the many years of litigation that will arise as a result of the NLRB’s decision. For now, there are at least three implications of this decision that the labor professional should be thinking about:

  • There are many statutorily protected rights for employees. Member Miscimarra lists a number of them in his opinion, including wage/hour, workplace safety, workers’ compensation, unemployment compensation, and discrimination laws. Thus, there a wide array of situations in which NLRA rights could arise.
  • Importing NLRA protections into workplace investigations of harassment, or other legal violations, will complicate those investigations. The facts of this case demonstrate this difficulty, and Member Miscimarra discussed these issues in his opinion. The employer asked just two questions that were allegedly unlawful “interrogation” about Elias’ concerted activity. While the NLRB did not find a violation of the statute on account of these two questions, the majority’s holding rests on extremely narrow grounds. Thus, future investigations involving different conduct and different questions may not be protected. Careful consideration of how the investigation is structured and what is asked will be very important.
  • An employer may be able to satisfy the Banner standard with the correct facts.  Recall that the employer had instructed Elias not to obtain any additional statements. Citing the case that Banner rested upon, the NLRB found that this instruction was permissible in this case because it was “narrowly tailored to address the [employer’s] need to conduct an important and thorough investigation.” But, the NLRB specifically noted that the employer did not prohibit Elias from, among other things, talking to other coworkers or asking them to be witnesses.