NLRB Expands Definition of “Protected Activity”

Employee Elias of grocery store Fresh & Easy Neighborhood Market was instructed to write a reminder about upcoming training on the Company’s whiteboard. After she wrote the reminder, someone drew an inappropriate picture near Elias’ name. Since Company policy prohibited her from taking a photo of the whiteboard, she drew a copy of the image and sought witness statements from co-workers to support the accuracy of the drawing. Elias then turned the drawing into the Company and complained that it amounted to sexual harassment. She never intended to file a joint complaint with the people who signed the document (and they denied any intent of participating in the complaint), but she thought other female employees would also be offended by the conduct and wanted to stop it from happening again.

According to the Board, this activity – an employee acting on her own behalf regarding a claim of sexual harassment directed solely at her – was “indeed engaged in concerted activity for the purposes of mutual aid or protection.” Really?

To be protected under Section 7 of the NLRA, employee conduct must be both “concerted” and for the purpose of “mutual aid or protection.” The fact that Elias may have had personal motivations for her actions was irrelevant to the analysis because both elements are judged from an objective perspective. The Board concluded that Elias’ conduct in seeking her coworkers’ assistance in raising a sexual harassment complaint to management was concerted activity even if she did not intend to file a joint complaint because: (1) concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed; (2) Board precedent establishes that concerted activity includes not only true group complaints, but also cases “where individual employees seek to initiate or to induce or to prepare for group action,” and thus includes “preliminary individual discussions, as long as it is not solely by and on behalf of the employee himself;” and (3) it is well established that “the activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.”

The Company questioned Elias as to why she obtained witness statements from her co-workers and directed her to stop collecting statements. These requests were lawful because they were narrowly focused and came during the Company’s investigation into Elias’ sexual harassment claims. The Company did not prohibit Elias from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing additional complaints, or obtaining statements from coworkers in future complaints.

According to the two pro-employer Board members, Elias’ conduct should be considered concerted activity but the majority’s ruling created too loose a standard for finding that concerted activity was carried out for the purpose of mutual aid or protection. They stated, “We enforce a single statute that, on its face, does not afford protection to ‘individual’ action. The majority’s expansion of Section 7 – though well-intended – will impair employee rights and hinder the ability of employers to comply with statutes that require prompt, thorough investigations and meaningful corrective actions.”

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