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NLRB Continues to Expand Definition of Concerted Activity

Published:  August 19, 2014

The National Labor Relations Act prohibits employers from constricting protected concerted activity by their employees. The NLRB website states that “concerted activity” is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. However, in the past few years, the National Labor Relations Board (NLRB) has broadened the definition of what is considered concerted activity.

The most recent broadening of the definition of concerted activity is seen in Fresh & Easy Neighborhood Mkt., Inc. and Elias.  In this case, an employee acting for her own interests was deemed to have been engaging in protected concerted activity. Margaret Elias was employed by Fresh & East Neighborhood Market Inc. when she sought assistance from her co-workers in obtaining evidence of sexual harassment. Upon seeing an inappropriate image that had been drawn next to Elias’s name on a whiteboard in the break room, Elias sketched the image on to a piece of paper and asked other employees who were present to sign the paper to acknowledge that the image was a fair representation of what was on the whiteboard.

When management found out about the incident and Elias obtaining signatures, an Employee Relations Manager instructed Elias not to obtain any further statements regarding the incident and stated that Fresh & Easy would investigate. The Employee Relations Manager also told Elias that she could talk to employees about being witnesses but she could not discuss what they had witnessed. Elias claimed that Fresh & Easy violated the National Labor Relations Act by instructing her not to seek further statements. The NLRB determined that this was not the case and that Fresh & Easy had a legitimate interest in conducting a fair and impartial investigation without the interference of Elias.

The NLRB also took this opportunity to determine that Elias’s choice to ask for other employee’s signatures on her sketch of the alleged sexual harassment was concerted activity for the purpose of mutual aid and protection. While previously, the NLRB has held that similar activity is not concerted, the Board decided to go against that previous decision and stated that the proper question to determine if the activity was for mutual aid and protection is if there is a link between the activity and matters that concern the workplace or employees’ interests.

This case serves as a great reminder for employers to seek assistance from employment counsel whenever there is a complaint of discrimination or sexual harassment by another employee. Also, to reduce risk of claims, make sure all supervisors are properly trained to handle situations of employee conflict.

If you have any questions regarding protected concerted activity and employer obligations, please contact any of the attorneys at Royal LLP at (413) 586-2288.