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Concerted Activity

One of the most vexing issues for employers over the years is whether the action of an individual employee constitutes "protected concerted activity," which is protected against retaliation by the employer under the Labor Act.  Some of these cases, often decided adversely to the employer, arise in a context in which a single employee engages in some type of protest in front of other employees, and which may be presumed by the NLRB to be initiating group action.  While the intent to initiate group action has often been found sufficient to be considered protected and concerted, a recent NLRB decision casts doubt on that conclusion.

In Alstate Maintenance, 367 NLRB No. 68 (1/11/19), an employee complained in front of several other employees and a supervisor that they were not going to be properly tipped for certain work, and afterward there was a reluctance and some slight delay at beginning the job performance.  The employer fired the complaining employee.  The issue before the NLRB was "whether respondent's Skycap Greenidge was discharged because he engaged in protected concerted activity when he raised concerns to his direct supervisor in front of his co-workers about the possibility that he and his co-workers would not receive tips for a job assignment."  Ultimately, the NLRB ruled that the complaint by the employee was not protected under Section 7 of the Labor Act:  "Individual griping does 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 ['we']."  The NLRB reasoned that what really happened was a brief encounter between the supervisor and his supervisees, the giving by that supervisor of a work assignment, and a gripe about the assignment by an employee who subsequently disclaimed any object of initiating or inducing group action by testifying that his remark was "just a comment."  The NLRB set forth five factors relating to whether an employee was trying to initiate group action: 

  • 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;
  • The decision affects multiple employees attending the meeting;
  • The employee who spoke up in response to the announcement did so to complain about the decision, not merely to ask questions about how the decision would be implemented;
  • The speaker protested the decision's effect on the workforce, not solely its impact on the speaker himself; and
  • 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.


While the ruling does not make clear the circumstances when an employee complaining in front of other employees will likely to be considered protected and concerted, it at least sets forth the factors to be considered.  The issue, of course, is whether a single employee can be engaged in concerted activity that usually requires the actions of two or more persons. 


It is well recognized that the current National Labor Relations Board (NLRB) is reversing some of the Obama-era rulings that adversely affected the employer community.  One of the issues addressed is whether a union in a non-right-to-work state may charge non-members "agency fees" for certain activities not directly relating to collective bargaining.  In such states, employees do have the right to refuse to participate in certain union expenditures, such as those for political activities.  Based upon prior rulings of the U.S. Supreme Court, unions have long been prohibited from using mandatory agency fees for purely political activities, but certain lobbying expenses have been allowed where the issues relate to collective bargaining matters.  In a ruling of the NLRB on March 1, 2019, however, the NLRB ruled that agency fees may not be used to fund lobbying expenses.  The NLRB majority, with the lone Democrat dissenting, found that lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.  United Nurses and Allied Professionals, No. 01-CB-011135. 

The NLRB majority also said that unions must provide non-members with an independent audited verification as to which expenses can be paid with agency fees.  This information gives non-members the opportunity to make an informed decision about whether to challenge a union's calculations about what expenses can be paid with agency fees. 

In a further policy shift suggested this week, the NLRB General Counsel, Peter Robb, stated that his office may take the position in the future that unions should tell new employees how much they would pay in agency fees if they decided not to join the union so that they can have a better opportunity to object to paying the full member dues.  This is not yet the policy of the NLRB itself, but the NLRB General Counsel serves as sort of a prosecutor who picks cases and issues to be determined by the NLRB itself.


For many years, employers with more than 100 employees have been required to report the sexual and racial makeup of their workforces within designated categories of workers.  Consistent with a national trend toward pay equity, during the Obama Administration, the Equal Employment Opportunity Commission (EEOC) revised its EEO-1 form to include a requirement to report pay data in addition to job group data.  When the new administration took over, the Office of Management and Budget froze the new requirements.  Several groups, including the National Women's Law Center, sued, contending that the government did not properly justify its decision to freeze the new requirements.  On March 4, 2019, a federal court judge in the District of Columbia vacated the stay and restored the EEOC's pay data collection requirements.  Although there is a possibility of an appeal, no announcement has been made as to whether the requirements must be met by the original deadline of May 31, 2019. 

Under the new requirements, employers must report the racial and gender makeup of employees in each job category (executive, professional, sales, etc.) within 12 pay ranges, for each of the company's locations.  The expanded form may reach 10 pages, while the previous form was only one page.

Many employers worry about the new requirements as the data is likely to be among the first items sought in any discrimination investigations or litigation.  The data also may be sought by activist groups, although the EEOC says it will keep the information confidential.  

Wimberly, Lawson, Steckel, Schneider & Stine

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