News & Insights

Does “Protected Concerted Activity” Really Mean One?
September 25, 2014
by Robert Conte


South Bend / Mishawaka, IN – From the ridiculous to the sublime (rarely the latter). The National Labor Relations Board appears to be an agency in search of a mission (and a purpose). With unionization at a low point, the NLRB mires in ostrich-like obliviousness, looking for ways to harm the employer and live up to the expectations of those very few who seek out unions.

The Obama Administration, through the NLRB (and DOL) has sought to strengthen its hold over the workplace with its continued effort to expand workers’ rights as provided under Section 7 of the National Labor Relations Act, which permits employees to engage in “protected and concerted” activities. Continuing on its misplaced mission of overturning employer-friendly precedent, the NLRB recently issued a ruling that changes (expands) the definition of “protected activity” under the NLRA. In the past, an employee had to show that he or she was engaging in “concerted” activity (group action) for “mutual aid and protection” of others rather than solely for the benefit of himself or herself. Well that may no longer be the rule.

In Fresh & Easy Neighborhood Market, Inc. (August 2014), the NLRB overruled its decision in Holling Press (2004) which held that the employee’s (sexual harassment) complaint was not “concerted” (protected) because from the outset, the employee followed a course of action with only her interests in mind. In Fresh & Easy, a similar fact situation existed. An employee was trying to find support for an individual sexual harassment complaint, and was specifically trying to solicit co-workers to provide evidence on her behalf. The employer, which was conducting its own investigation of the incident, asked the employee to stop her inquiries. The employee was not disciplined. Nonetheless, in its infinite wisdom the NLRB saw it otherwise. The Board ruled, employees generally have the right under the NLRA to engage in this type of conduct, thus there should be a link between the activity and the matters concerning the workplace or employees’ interests as employees. The NLRB determined that the employee’s attempt (individual action) to get others to assist her in a complaint against the employer, was sufficient to constitute “group action” protected by the NLRA. According to the Board, the employee’s attempt to prevent alleged sexual harassment was enough to show “mutual aid and protection”, even though the employee admitted she was pursuing her claims on behalf of herself.

The Board’s ruling presents yet another challenge for employers as this agency pursues its mission of harming the employer. In typical board fashion, no employer guidelines were provided by this ruling, so employers are left to ask the obvious question. . . . Does concerted really mean one?

DISCLAIMER: The material provided in this article is presented for informational purposes only and should not be acted upon without advice and counsel from an experienced attorney familiar with the facts of your specific situation.