A Limited Definition of Concerted Activity

By Daniel Saeedi, Rachel L. Schaller

Apr. 1, 2019

Alstate Maintenance LLC staffs Kennedy International Airport with tipped baggage handlers.

Two managers from Lufthansa asked a group of Alstate skycaps to assist a VIP soccer team with their baggage. A skycap stated to his Alstate manager, in front of others, “We did a similar job a year prior and we didn’t receive a tip for it.”

The skycaps initially refused to help with the baggage but ended up pitching in. Alstate terminated the skycap. An unfair labor practice was filed alleging Alstate terminated the skycap for engaging in concerted activity. The National Labor Relations Act provides employees the right to engage in “concerted activities” for purposes of their “mutual aid or protection.”

Protection for engaging in concerted activity extends to all employees. In a 3-1 vote, the NLRB held the termination did not violate the NLRA and adopted a more limited definition of “concerted activity.”

In finding the skycap’s comment was not concerted activity, the NLRB held concerted activity must involve “bring[ing] a truly group complaint regarding a workplace issue to management’s attention. … [I]ndividual 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.”

Alstate Maintenance LLC, 367 NLRB No. 68 (2019).

IMPACT: All social media and other communication-related employment policies should recognize no adverse employment actions will be taken against employees for engaging in concerted activity.

Also in Legal Briefings: Public Sector Employers and Age Discrimination

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