October 15, 2014Client Alert

Concerted Activity and Bullying One in the Same? The NLRB Says, “Yes.”

A recent National Labor Relations Board (NLRB) decision, Fresh & Easy Neighborhood Market, again stretches the outer limits of Section 7 protections. Under Section 7 of the National Labor Relations Act (NLRA), employees are protected to engage in concerted activity for the purpose of mutual aid and protection. In Fresh & Easy, the NLRB held that a grocery store employee’s conduct was protected under Section 7 when she asked co-workers for assistance in preserving evidence related to a personal sexual harassment complaint she planned to raise with her employer, even though she altered the evidence thereafter.

The employee, Ms. Elias, left a note on a company whiteboard asking to participate in sales training. Another employee later changed Ms. Elias’ note into an inappropriate message and added an inappropriate drawing. Ms. Elias replicated the inappropriate message on a piece of paper for documentation. Ms. Elias asked three co-workers to sign the document as witnesses and at some point informed them of her intent to file a sexual harassment claim. After the co-workers signed the document, Ms. Elias edited the document. The co-workers stated that they had been forced to sign the document and did not want to help Ms. Elias bring a sexual harassment complaint. One of the co-workers made a formal complaint against Ms. Elias for “bullying” her into signing the document. When questioned, Ms. Elias asserted that she obtained the co-workers’ signatures for her own protection.

The employer instructed Ms. Elias not to obtain any additional statements from her co-workers, but did “not prohibit Elias from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements from coworkers in future complaints.” The employee responsible for the whiteboard issue was disciplined.

Ms. Elias filed an NLRB complaint against the grocery store alleging, in part, that the grocery store interfered with her Section 7 rights when it instructed her to not obtain any additional statements from her co-workers and questioned her about why she solicited signatures from her co-workers. 

The NLRB held—with a divided majority—that, despite the fact that the co-workers did not agree with Ms. Elias’ cause and did not want to join her complaint, Ms. Elias’ solicitation of support from her co-workers was concerted activity. The NLRB further reasoned that it was “for mutual aid and protection” because the solicited co-workers are considered to have an interest in helping the complaining party even when only the complaining employee has an immediate stake in the outcome. As a result, the NLRB found that Ms. Elias’ activity was protected under Title VII.

Despite this holding, the NLRB also held that the grocery store did not violate the NLRA when it instructed Ms. Elias not to obtain any additional statements from her co-workers and questioned her about why she solicited co-worker signatures. The grocery store’s requests were narrowly tailored to address (and therefore permissible under the NLRA) its business need to conduct an impartial and thorough investigation. 

This decision is consistent with the NLRB’s recent trends, which increasingly scrutinizes employer conduct while expanding employees’ traditional NLRA rights into new areas.  Specifically, this case illustrates the NLRB’s growing pattern to encompass more employee activity as “concerted,” even when the conduct appears to be individual. This trend is concerning as it likely permits more conduct to fall within Section 7 activities and more cases to be heard before the NLRB.  Therefore, employers should reconsider whether employee conduct is protected under Section 7, even when the person seems to be acting alone and without co-worker support. Employers may be permitted to limit an employee’s ability to speak with co-workers during an investigation, but any such request must be narrowly tailored. Unfortunately, as discussed in a previous client alert, there is little guidance on specific circumstances that permit an employee to request confidentiality during an investigation.

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