Employers are often faced with employees who complain about issues with their employment. When employees engage in "protected, concerted activity," however, the NLRA prohibits employers from taking disciplinary action against them. A recent case from the NLRB is a good reminder of this rule. In Wyndham Resort Development Corp., 356 N.L.R.B. No. 104 (March 2, 2011), the NLRB held, in a 2-1 decision, that an employer unlawfully disciplined an employee for engaging in protected, concerted activity. The circumstances of the case are particularly noteworthy for the labor relations professional.
The employer implemented a rule for salesmen requiring that shirts be tucked in. An employee, learning of this policy upon returning from a vacation, confronted management about how the rule was announced in front of a group of his co-workers. During this confrontation, another employee expressed concerns about the substance of the rule, objecting to the requirement that he tuck in his shirt. That employee indicated, among other things, that he "didn’t sign up for this crap". Neither of these employees had talked to the other in advance of their respective decisions to raise this complaint with management.
Ultimately, a manager issued a written warning to the first employee. The manager noted the employee’s argumentative and aggravated tone during the confrontation. The manager also noted in the warning that the employee "incited" another employee to join in.
The NLRB majority held that the employer’s written warning was unlawful. The employee was engaged in concerted activity because he made references to "we" and "us" when opposing the employer’s policy. The employee also knew that some of his coworkers enjoyed wearing shirts untucked, and thus he could "reasonably expect" those employees to disagree with the rule. The fact that another employee joined in also demonstrated concerted activity. Indeed, given the employer’s reference to this fact in the written warning, the NLRB concluded that the employer disciplined the employee precisely because he chose a group forum that was likely to induce group action.
The NLRB majority found it irrelevant that the employees had not agreed or consulted one another in advance of the employee meeting to protest the work rule together. It was enough, said the NLRB, that the employee was attempting to initiate or induce group action.
Member Hayes disagreed with the majority opinion. He noted that the employee acted in a group setting, but that there was no evidence that he did so on behalf of coworkers or to induce group action. Member Hayes criticized the majority for essentially holding that an employee who voices a complaint in a group setting is thereby engaged in concerted activity.
For the labor professional, Wyndham Resort is significant for at least two reasons:
- It demonstrates the breadth of protection the current NLRB will afford employees engaged in "protected, concerted activity."
- It reminds employers of the need for effective mechanisms (e.g., "open door" policies) to receive and address employee complaints.