Employee complaints must be “concerted” to enjoy the protections of federal labor law. This requirement, contained in the language of the NLRA, stems from the collective nature of rights guaranteed by the NLRA, which ensure protection for union activity or activity that is made for “mutual aid or protection.” Despite rather clear statutory language, the labor bar has debated the meaning of “concerted” for many decades and the NLRB’s case law has alternated between restricted and expansive definitions over time.
In Alstate Maintenance, the NLRB has swung the pendulum back toward the literal meaning of “concerted” by excluding individual employee complaints from protection of the Act. The facts of the case involved skycap/baggage handler who refused to assist some passengers because he expected little or no tip. The skycap complained to managers about his perceptions regarding the passengers in front of other employees. After being terminated for his actions and complaint, the skycap brought his dispute to the NLRB.
The NLRB found that the skycap’s complaint, even though it was made in front of other employees, was not made “in concert” with those employees. The employee did not bring a truly group compliant to the attention of management or take some other action to induce group action of employees. Essentially, the employees merely “griped” about his individual thoughts about a single employment incident after it was concluded. The NLRB discounted the fact that the employee used the language “we” in his complaint.
Alstate is an important development for several reasons. First, the NLRB has returned its standard for “concerted” activities to cover only group complaints. Second, it has clarified that complaining in front of employees, or using the words “we” or “us” in a complaint, does not convert an individual complaint to a group complaint. Third, and possibly most the important aspect of this decision, the NLRB’s narrowing of the “concerted” standard will have the greatest impact in non-union workplaces where employees lack union protection and mainly rely on the protections for concerted activities embodied in Section 7 of the NLRA. Alstate will likely be a significant tool for employers defending against NLRB charges related to protected concerted activity.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.