NLRB to Redefine ‘Protected Concerted Activity’

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The National Labor Relations Board (NLRB), now with a 3-1 Republican majority, is seeking to limit the uses of the “protected concerted activity” clause of the National Labor Relations Act (NLRA).

nlrb-protected-concerted-activity-definitionIn a decision rendered Jan. 11, the majority members noted that, through the years, previous boards have “blurred the distinction between protected group action and unprotected individual action.” Further:

The applicable standard [for protected concerted activity] should not sanction an all-but-meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor. In addition, the protection afforded by the Act to engage in protected concerted activity requires a clear standard that can be relied upon by employees who seek to engage in such activity and by employers who must determine whether particular employee conduct is within or outside the protection of the Act.

According to the decision in Allstate Maintenance, no longer will an individual employee, venting a personal gripe, be able to use the “protected concerted activity” defense just because he airs his complaint in front of other employees and a supervisor. In general, the phrase applies to truly group complaints, the board emphasized.

The decision seeks to revert to the standard set in the Myers Industries cases more than three decades ago. Accordingly:

Our decision today begins the process of restoring the Meyers standard by overruling conflicting precedent that erroneously shields individual action and thereby undermines congressional intent to limit the protection afforded under the Act to concerted activity for the purpose of mutual aid or protection.

The NLRB currently has only four members since the membership of Mark Gaston Pearce, a Democrat, expired with the convening of the new Congress on Jan. 3. Republicans in the Senate had refused to vote on his renomination, so now President Trump must either renominate him or choose another nominee from among Democrats.