A 3-1 majority of the National Labor Relations Board announced last week its intent to level set what constitutes “protected concerted activity” given that the Board has over the years “blurred the distinction between protected group action and unprotected individual action.” In its decision in Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), the Board opined:

The applicable standard [for protected concerted activity] should not sanction an all-but-meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor. In addition, the protection afforded by the Act to engage in protected concerted activity requires a clear standard that can be relied upon by employees who seek to engage in such activity and by employers who must determine whether particular employee conduct is within or outside the protection of the Act.

The Board articulated such a standard more than three decades ago in the Meyers Industries cases. But even though the Meyers decisions have never been overruled, subsequent decisions…have deviated from Meyers and blurred the distinction between protected group action and unprotected individual action. Our decision today begins the process of restoring the Meyers standard by overruling conflicting precedent that erroneously shields individual action and thereby undermines congressional intent to limit the protection afforded under the Act to concerted activity for the purpose of mutual aid or protection.

Under the ‘new old’ standard set forth in Alstate Maintenance, individual griping will 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. Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. According to the Board, relevant factors that would tend to support drawing such an inference include that:

  1. 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;
  2. the decision affects multiple employees attending the meeting;
  3. the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
  4. the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and
  5. the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

The Board noted that not all conditions must be present, 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–would also support a finding of concertedness.

The alleged protected concerted activity at issue in Alstate Maintenance was a single remark by a skycap to his supervisor in front of other skycaps. Specifically, the skycap was approached by his supervisor, who informed him that an airline customer had requested skycaps to assist with a soccer team’s equipment. The skycap remarked, “We did a similar job a year prior and we didn’t receive a tip for it.” The skycap was terminated for being “indifferent to the customer and verbally mak[ing] comments about the job stating you get no tip or it is a very small tip. [Y]ou made this comment[] in front of other skycaps….”

The Board found that the skycap did not engage in concerted activity and, even if he had, it would not have been protected concerted activity:

First, the General Counsel does not contend that [the skycap] was bringing a truly group complaint to the attention of management, and the record is devoid of evidence of “group activities” upon which to base a finding that [the skycap] was doing so. There is no evidence that the tipping habits of soccer players (or anyone else) had been a topic of conversation among the skycaps prior to [the skycap’s] statement. Neither does [the skycap’s] use of the word “we” supply the missing “group activities” evidence: it shows only that the skycaps had worked as a group and been “stiffed” as a group, not that they had discuss the incident among themselves. Second, the statement in and of itself does not demonstrate that [the skycap] was seeking to initiate or induce group action, and the record contains direct evidence to the contrary. At the hearing, [the skycap] testified that his remark was “just a comment” and was not aimed at changing the Respondent’s policies or practices…and the judge credited [the skycap’s] testimony in this regard, finding that the remark “was simply an offhand gripe about [the skycap’s] belief that French soccer players were poor tippers.” Where a statement looks forward to no action at all, it is more than likely a mere griping, and we find as much here.

Member McFerran dissented, asserting that the majority (consisting of Chairman Ring and Members Kaplan and Emanuel) “risk frustrating the full realization of that statutory objective [to protect “concerted” activities] by subordinating the fact-sensitive approach at the heart of a Meyers analysis to criteria that effectively establish a minimum threshold for finding that an employee’s activity is concerted.”

Alstate Maintenance is a significant reversal of prior Board decisions “impermissibly conflating the concepts of group setting and group complaints,” but the Board signaled that it wants to do more if given the opportunity. In a footnote the Board noted that there are other cases that arguably conflict with Meyers, including where the Board has deemed statements about certain subjects “inherently” concerted, such as discussions about wages, work schedules, and job security. The Board stated that it is “interested in reconsidering this line of precedent in a future appropriate case.”