NLRB Continues to Broaden its Reach Over Non-Union Employers

In Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (2014), the National Labor Relations Board (“NLRB”) considered whether an employee’s solicitation of assistance from her co-workers in raising sex harassment claims to her employer constituted protected activity under the National Labor Relations Act (“NLRA”).  In short the NLRB held soliciting assistance from coworkers in such a manner was protected activity.

Margaret Elias was a cashier at a grocery store.  She asked her supervisor, Bruce Churley, if she could participate in training related to the sale of alcohol, referred to as “TIPS.”  Churley asked Elias to remind him by writing a note for him on a whiteboard in the break room.  The next day, Elias saw that the word “TIPS” in her message had been replaced with the word “TITS” and a picture of a worm urinating on her name had been drawn on the whiteboard.  After seeing the board, Elias told her team leader she wanted to file a sex harassment complaint.  The team leader told Churley that Elias wanted to file a complaint.  Churley had the team leader take a picture of the whiteboard and then erase the message.

Elias copied the picture and altered message onto a piece of paper before it was erased and asked the team leader and two co-workers to sign the reproduction, which they did.  When asked about their signing the document, each responded they believed they only were confirming that Elias’ reproduction was accurate, and that they did not want to help Elias bring a complaint and felt forced to sign the document.  Elias stated she had obtained her co-workers’ signatures on the document for her own protection.  Later, her coworkers made a complaint against Elias because she wrote an additional comment on the document after they had signed it.  The employer’s employee relations manager told Elias not to obtain any more statements from other employees so that she could conduct her investigation.  As a result of the company’s investigation, the employee who altered the message was disciplined.  Elias later filed an NLRB charge alleging the employer’s prohibition against obtaining additional witness statements violated the NLRA.

The NLRA protects employees who engage in conduct that is both:  (1) concerted; and (2) engaged in for the purpose of mutual aid or protected.  To be concerted, the NLRB must determine the extent to which the employee’s actions may be linked to those of her coworkers.  As for mutual aid or protection, the NLRB focuses on the goal of the concerted activity and whether the employee involved is seeking to improve terms and conditions of employment or, alternatively, improve their lot as employees.

The NLRB in Fresh & Easy first concluded that Elias was engaging in concerted activity when she sought her coworkers’ assistance in bringing a sex harassment complaint to her employer.  The NLRB further held that even if her coworkers did not agree with the complaint, or even if they did not want to sign the document, Elias still was engaged in concerted activity.  In addition, the conduct was concerted even if Elias was the only intended beneficiary of her solicitation for assistance.  Thus, her coworkers did not have to agree with Elias, join her cause, or even share an interest in the matter raised in the complaint for her solicitation to be concerted.

Second, the NLRB found that Elias’ concerted activity was for the purpose of mutual aid or protection despite the fact the conduct she was complaining about was directed solely at her, she was the only direct beneficiary of her concerted activity, and she never indicated she was representing or pursuing the other employees’ interests.  Relying on the NLRB’s long-held maxim of solidarity among employees in pursuing a particular cause, the NLRB concluded Elias was acting for the mutual aid and protection of others.  In other words, because she approached her coworkers with a concern implicating the terms and conditions of their employment, and sought their help in pursuing her concern, her conduct was protected.

In a more limited finding, based on the facts of this particular case, the NLRB concluded the employer’s directive not to obtain additional witness statements from her coworkers did not violate the NLRA.  The employee relations manager’s instruction was narrowly tailored to address the need to conduct a thorough and impartial investigation.  The NLRB noted that Elias was not prohibited from discussing the investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining witness statements in the future.

Also of note, the NLRB held there was no violation arising out of questioning Elias about the whiteboard note and her request for assistance in making the complaint.  The NLRB held that because Elias’ coworkers had complained about her conduct as well in terms of their concerns about her altering the reproduction of the message after they had signed it, it was reasonable and lawful to inquire of her why she had asked for her coworkers’ signatures.  The NLRB also relied on the fact that the employer assured Elias she would be protected from retaliation of any kind and told her to report any future incidents of harassment or retaliation.

As a result of the NLRB’s decision, employers must tread carefully in conducting workplace investigations and not restrict employees in their efforts to solicit coworkers’ assistance.  In addition, employers must be sure to advise employees of their right to bring complaints of harassment or discrimination and that doing so will not result in retaliation of any kind.  Finally, with the scope of protected, concerted activity broadening, employers can expect more and more claims being pursued before the NLRB.

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