NLRB Holds that Use of the Word “We” In a Group Setting Does Not Make Individual Gripes Concerted Activity
In Alstate Maintenance, LLC, the National Labor Relations Board found that an employer did not violate Section 8(a)(1) of the National Labor Relations Act when it discharged an employee after he voiced individual gripes in a group setting, and included the word “we” in his complaint. In dismissing the complaint, the Board held that the employee’s conduct was neither concerted nor protected.
Facts of the Case:
The employer terminated an airport skycap after he complained to his supervisor about being assigned to assist a French soccer team with its equipment. The employee, Greenidge, told his supervisor, in the presence of other skycaps, “We did a similar job a year prior and we didn’t receive a tip for it.” Greenidge and his fellow skycaps initially refused to assist the soccer team with its equipment, but eventually did so before the job was finished. The employer discharged Greenidge soon after the incident.
The Board’s Decision:
The Board concluded that Greenidge was not engaged in concerted activity under Section 7 of the NLRA.
First, the Board found Greenidge was not bringing a group complaint to management’s attention, and there was no evidence of “group activities” upon which to conclude that he was doing so. The Board found that Greenidge’s use of the “we” did not render his activity concerted; rather, the use of “we” merely showed that skycaps had previously worked together and received a poor tip as a group.
Second, Greenidge’s statement alone did not establish that he was seeking to initiate group action. Because Greenidge was not looking to induce group action, or any action at all, the Board concluded that his statements constituted “mere griping,” and were not concerted. Notably, the Board expressly overruled WorldMark by Wyndham, 356 NLRB 765 (2011), an Obama Board decision that effectively held that an individual employee’s complaint in a group setting automatically constitutes concerted activity.
In addition to its holding that Greenidge’s conduct was not concerted, the Board also concluded that his activity was not “protected.” Greenidge was admittedly neither expressing dissatisfaction with existing tipping policies, nor was he seeking to change the employer’s policies or practices. The Board noted that the amount of a tip given by a passenger to the skycap is a matter between the passenger and the skycap, from which the employer was essentially detached. Additionally, Greenidge’s statement was not aimed at improving the skycaps’ lot as employees. Accordingly, the Board found that Greenidge’s conduct was not undertaken for the purpose of mutual aid or protection, and, thus, was not protected.
Lessons Learned :
While the Board will continue weighing the totality of the evidence when analyzing whether an employee’s activity is concerted, the takeaway is that the Board will not find individual gripes to be concerted activity solely because they are voiced in a group setting and use the first-person plural.