NLRB Concerted Activity Claims on the Rise

Labor & Employment Alert

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Two recent advice memos issued by the National Labor Relations Board (NLRB) provide further guidance on the issue of “protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA), commonly referred to as “Section 7 Rights.”

Two categories of advice memoranda were released to the public: memoranda directing dismissal of the charge that are required to be released pursuant to NLRB v. Sears, Roebuck & Co. (421 U.S. 132 (1975)), and memoranda in closed cases that are not required by law to be released but are released in the general counsel's discretion.

By way of background, in order for an employee’s conduct to be considered protected activity, it must be both “concerted” and for the purpose of “mutual aid or protection”(Alstate Maintenance, LLC, 367 NLRB No. 68 (January 11, 2019)). An individual acting solely for him or herself and not intended to involve group action is not engaged in concerted activity. But when an individual employee brings “truly group complaints to the attention of management” it will be considered protected. Finally, a true group complaint must involve evidence of “prior or contemporaneous discussion of the concern between or among members of the workforce.” An employee who is discharged or disciplined by an employer for engaging in protected concerted activity can file an unfair labor practice charge with the NLRB alleging a violation of Section 8(a)(1) of the act.

In the first opinion involving a Starbucks store, the question presented for advice was whether an “in-store” demonstration held by off-duty employees concerning management practices was “unprotected” by the act. In this case, the off-duty employees and a group of non-employee supporters entered the store, read aloud a demand letter previously submitted to management, and left while loudly chanting that the store manager “must go.” Following discipline issued to the employees, unfair labor practice charges were filed with the NLRB.

The opinion analyzed the employees’ conduct under the precedent of Restaurant Horikawa (260 NLRB 197 (1982)), which held that off-duty employees who enter an employer’s restaurant or retail establishment to engage in Section 7 activity retain their “protection” only if, under the totality of the circumstances, their conduct does not disrupt the employer’s operation. Store video showed 15 demonstrators with three or four off-duty employees crowded into the small store space and congregated at the back of the store. Even though the demonstration was brief (four or five minutes), the activity undoubtedly caused a significant disruption for the patrons. The general counsel concluded that the conduct in question was not protected. Even though a coffee shop is a different environment than a table service restaurant, Starbucks’ customers had similar expectations of “quiet enjoyment” (unlike grocery store customers). This was particularly true given Starbucks’ “Third Place Policy” “promoting a warm and welcoming environment” for customers to “gather and connect.” The policy also provided guidance for employees on how to address disruptive behavior that interfered with the Starbucks “experience for others.”

In the second opinion, the activity involved COVID-19 related concerns and the discharge of an employee who claimed she was engaged in protected activity. In the case involving Hornell Gardens, LLC, an employee refused to work a scheduled shift on April 11, 2020, because she would not work with shared isolation gowns. The discharged employees did discuss the issue with one other employee prior to submitting a letter to her employer, but there was no evidence that the object of that conversation was initiating, inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, the employee’s letter was solely focused on her personal disgust at the notion of sharing gowns and fear for her own and her family’s safety, which she believed to be a risk.

The opinion states the employee’s refusal to work her scheduled shift on April 11 was not concerted or for the purpose of mutual aid and protection. Moreover, the employee’s reading of her statement to the employer on that day was not “a logical outgrowth of the concerns expressed by the group (Mike Yurosek & Son, Inc. (306 NLRB 1037 (1992)). The NLRB further stated that even if a group discussion took place with a plan of action not to share gowns, there was no evidence that the plan went any further than that. The group never took their concerns to management, the discharged employee acted solely on her own and without any concerted plan or support from her coworkers, and no other employees refused to work or supported any plan not to work their scheduled shifts. As such, the activity was not concerted protected activity.

Again, the current NLRB continues to issue employer-friendly decisions, some of which vary widely from prior precedent. These decisions on concerted protected activity are of significant importance, especially in view of the increasing concerns over workplace safety given the COVID-19 pandemic.