National Labor Relations Board Expands Definition of Concerted Activity

A company recently implemented a new casual dress rule requiring that shirts be tucked in.  While waiting for a sales meeting to begin, one salesman asked the Vice President of Sales about the new policy.  Another salesman then made several statements to the VP including “It [the rule] is pretty restrictive.  You know, I might not want to tuck in my shirt;” “I didn’t sign up for this crap”; and “I don’t need the money.”  The VP asked the salesman to discuss the rule with him later, but the salesman persisted  By the end of the discussion, seven or eight sales reps were watching.  The second salesman was later given a written warning for arguing with the VP.

In Wyndham Resort Development Corp., the NLRB concluded that the warning was unlawful because the salesman was disciplined for engaging in protected concerted activity.   Historically, “concerted activity” has required proof that the employee was not acting solely on his or her own behalf, but “with or on the authority of other employees.”

As described by dissenting Member Hayes, what is new about this case is that the Board is  “conflating the concepts of group setting and group complaints.”   Now, the Board apparently extends the cloak of protected concerted activity to cover any complaint about working conditions merely because the complaint is voiced within earshot of fellow employees.

This protection of concerted activity applies to both union and non-union workplaces.

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