I recently described the NLRB General Counsel ruling that McDonald’s Corporation is a joint employer of its franchisees’ employees. The NLRB has now given me another hot topic, just in time for Labor Day. I’ve written previously about NLRB decisions impacting both union and non-unionized employers—this new topic is another such situation.
In Fresh & Easy Neighborhood Market, Inc., the NLRB decided that an employee who solicited statements from her coworkers about the employee’s individual complaint was engaged in “concerted activity” under Section 7 of the National Labor Relations Act (NLRA). As the Board and courts have long been established, “concerted activity” requires that two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. The NLRA prohibits all employers, whether unionized or not, from doing anything to quell employees concerted activities. What is new in the Fresh & Easy decision is the NLRB application of this principle to a single employee’s activity in pursuit of her individual claim.
In Fresh & Easy Neighborhood Market, Inc., an employee filed a complaint of sexual harassment over a cartoon drawn on a whiteboard in the breakroom that she believed was sexual harassment directed at her. Because she had no camera, she drew a picture of the offending whiteboard, then asked her coworkers to verify that the picture was an accurate representation of what they saw in the breakroom.
During the NLRB hearing, she testified that she filed her harassment complaint for her own behalf only. Moreover, the co-workers said that they had no intent of filing complaints themselves.
Nevertheless, despite the emphasis on the individual nature of her complaint, the three Democrat members of the NLRB held that the employee’s actions amounted to concerted activity “for the purpose of mutual aid and protection.” This majority of the Board found that the simple solicitation of support from fellow employees was “concerted,” even though the co-workers did not support the complainant’s claim.
Moreover, the majority held that the coworkers had an interest in helping the complainant, even if only the complainant had a stake in this case, because “next time it could be one of them that is the victim.”
Of course, this rationale applies whenever an employee complains about any employment issue, so completely abrogates the earlier limitations in case law on what constitutes “concerted activity.”
By contrast, the two Republican NLRB members dissented from this extension of the “concerted activity” principle. Each of the dissenters filed a separate opinion. Member Miscimarra criticized the majority’s opinion as having “limitless application” to workplace claims. He concluded that the Board majority expanded Section 7 coverage “for every individual employee—regarding every individual complaint implicating any individual non-NLRA right—as soon as the individual seeks the involvement of anyone else who is a statutory employee.”
Member Johnson’s dissent argued that the majority had created created an irrebuttable presumption that an employee seeking the support of coworkers is always acting for the purpose of “mutual aid or protection.” This would impose Section 7 protection any time an employee seeks assistance on an individual employment issue from a coworker, contrary to the intent of the NLRA.
The only good news in this case is that all five members of the NLRB ruled that Fresh & Easy (the employer) acted appropriately in asking the complaining employee not to solicit statements from her co-workers while it investigated her complaint, because the employer had a legitimate interest in conducting a fair and impartial investigation. None of the employees involved was disciplined for their actions.
However, the majority of the Board also stated that employers cannot issue blanket instructions not to discuss complaints, because that might chill concerted activity. So the case ended up being a soap box for the majority to expand the application of the “concerted activity” principle in a non-union context, without any liability imposed on the particular employer in question.
Thus, it remains important for non-unionized employers, as well as unionized workplaces, to consider potential NLRB action when handling employee complaints. After the Fresh & Easy decision, all employers must be careful whenever they investigate an individual complaint, including interrogating employees, conducting workplace surveillance, and email and property searches.
Moreover, as Member Miscimarra pointed out, after Fresh & Easy, employers cannot know which individual complaints may be subject to NLRA protection, because they cannot even ask employees whether their actions are “concerted.” In the Fresh & Easy case itself, the employer incurred years of litigation because it asked two questions during an investigation of a sexual harassment complaint, questions that were ultimately found to be lawful. Many more employers are likely to incur similar costs in the future due to NLRB involvement in matters already handled by the EEOC, OSHA, and a variety of other federal, state, and local agencies.
For more information on the Fresh & Easy decision, see
Fresh & Easy Neighborhood Market, Inc. (the NLRB opinion)
What changes will your workplace make in response to the expanded NLRB definition of “concerted activity”?