NLRB Broadens the Scope of Section 7 Rights Under the NLRA When it Comes to What is Considered Concerted Activity

Nicholas Fortuna, August 21, 2014.

Last week The National Labor Relations Board (NLRB) expanded the meaning of what is considered concerted activity under the National labor Relations Act (NLRA). Under the Board’s decision in Fresh & Easy Neighborhood market, Inc. and Margaret Elias, the Board determined that Elias was engaged in “concerted activity” for the purpose of ”mutual aid or protection” within the meaning of Section 7 of the NLRA when she sought assistance from her coworkers in asserting a sexual harassment complaint. In doing so, the Board specifically stated in its opinion that it is overruling its 2004 decision in Holling Press, Inc., which held that a lone employee’s protest is not concerted activity. The proceeding arose out of an unfair labor charge filed by Elias regarding the manner in which Fresh & Easy handles investigations of employee complaints.

Elias, a cashier at Fresh & Easy’s grocery store, requested to participate in a company sponsored alcohol training program called “TIPS.” Her supervisor directed that she write the request on a whiteboard hanging in the employee break room including her name. Another employee altered her message on the whiteboard in a way that was considered sexually offensive by Elias. The day of the alteration, Elias copied the doctored message on a piece of paper and asked two coworkers to sign the paper attesting it was an accurate depiction of what was on the whiteboard. Both coworkers signed the paper. Later, one of the coworkers complained Elias harassed her into signing the paper, but nevertheless found the doctored message offensive. The matter was reported to Elias’ supervisor that same day. He directed a picture of the whiteboard be taken with the offending message and then erased. Elias’ supervisor then reviewed the break room video cameras and determined that a coworker named Gary Hamner altered the white board message. Elias lodged a sexual harassment complaint.

In Holling Press, Inc. similar activity was not protected activity under Section 7 of the NLRA. In Holling Press, Inc. the Board stated:

[W]here one employee is the alleged victim, that lone employee’s protest is not concerted. And, even if the victim seeks support from another employee, and that seeking of support is concerted activity, the “mutual aid or protection” element is missing. The bare possibility that the second employee may one day suffer similar treatment, and may herself seek help, is far too speculative a basis on which to rest a finding of mutual aid or protection. [343NLRB at 303-304]

By contrast, in Fresh & Easy, the Board characterized what Elias did as concerted activity and reasoned that Elias’ conduct in approaching her coworkers to seek their support of her efforts regarding ”this workplace concern” would constitute concerted activity. Elias, the Board stated, did not have to engage in further concerted activity to ensure that her initial “call for group action retained its concerted character.” The Board also clarified that the concerted nature of Elias’ request would not be diminished even if Elias’ coworkers did not agree with her sexual harassment complaint or did not want to sign her document.

The Board found that Elias’ activity satisfied the other necessary element to fall under the protection of Section 7 of the NLRA, that her concerted activity was for the purpose of ”mutual aid or protection.” The Board said that Congress intended to protect concerted activities for a broader purpose than just self-organization and collective bargaining. The clause “mutual aid or protection” encompasses legitimate activity by employees that could improve their lot as employees. The Board concluded that Elias’ activity would be deemed for mutual aid or protection even though the conduct was seemingly directed at her alone.

By overturning Holling Press, Inc., the Board eliminated the exclusion from Section 7 for complaints from single employees. Concerted activity now includes seeking help for an issue that only affects an individual where there is a remote possibility that remedying that individual’s complaint would affect future conduct.