Conversations You Have with Yourself when Alone may be “Concerted” Activity

“THIS PLACE SUCKS!” Almost every employee has thought or said this in a moment of frustration in the workplace (except yours truly). A teacher at a private, non-profit, religious school recently yelled this to herself after being asked to provide documentation for reimbursement of expenses.

Could a statement made to yourself form the basis for an NLRB complaint? The National Labor Relations Act protects concerted activity, which is activity undertaken on behalf of two or more employees or by a single employee on behalf of a group. The school argued that the teacher’s statement was made to herself on behalf of herself and was not meant to initiate group action. The school further argued that this statement could not be concerted activity because the teacher was alone, she made the comment to herself, and no other faculty members had issues with the school’s reimbursement policy.

The Board disagreed and refused to grant the school’s motion for summary judgment. Is anyone shocked by this, are we all calloused to these rulings? The Board has not yet issued a decision on whether the teacher’s statement to herself constituted concerted activity, but it certainly has companies concerned. If a statement made to oneself is concerted activity, then the Board has stretched the definition of concerted activity far beyond the outer reaches of logic.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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