TOP TIP: The Actions of a Single Employee Can Be Protected Concerted Activity
The National Labor Relations Act protects the rights of employees, whether unionized or not, to engage in “concerted” (i.e. group) activity for their mutual aid or protection. It does not protect an employee’s actions on their own behalf. But, as a recent case makes clear, employers should be aware that if that employee asserts that they are acting on behalf of coworkers – even if they are acting alone – that activity may be considered protected concerted activity under the NLRA if it arises in relation to prior concerted activity.
In Moreno v. UtiliQuest, LLC, the employee alleged that company management asked him to collect signatures from all other employees to release their union rights in exchange for a ten percent raise. However, of all those who signed, the employee was the only one to receive a raise. On multiple occasions, he complained to his managers about his coworkers not receiving the promised raises. He was subsequently terminated, and sued, claiming among other things that he had been terminated for advocating on behalf of his fellow employees.
As the U.S. Court of Appeals for the Ninth Circuit explained, “[t]he NLRA does not protect an employee acting alone to complain about an issue, even if the issue concerns mutual aid or protection.” But if those actions take place against a backdrop of other group activity, they may “stem from” or be considered a “logical outgrowth” of such activity – and may then be found to be concerted and subject to the NLRA’s protection.
In this case, the Ninth Circuit found that, although the employee acted alone, his actions were not personal in nature. Rather they were a logical outgrowth of prior concerted activity, as the employee had convinced other employees to relinquish their union rights in exchange for a raise. Thus his advocacy on their behalf could be considered “concerted activity.”
This case emphasizes the need for employers to consider the circumstances carefully before terminating an employee who contends that they are acting on behalf of other employees. Such conduct may be protected by the NLRA.