Once again, the Trump-era National Labor Relations Board (“NLRB”) has overruled a previous Obama-era Labor Board decision, establishing an objective test for determining whether statements made by an employee constitutes protected activity under the National Labor Relations Act.

The case, Alstate Maintenance, LLC and Greenidge, 367 NLRB No. 68 (2019), came before the Labor Board after an employee of Alstate, a skycap at JFK International Airport, was terminated when he refused to perform work based on the belief that the customer would not tip well, saying to his supervisor that “we did a similar job a year prior and we didn’t receive a tip for it.” Such a statement and action in the past may have been protected under the Labor Board’s decision in WorldMark by Wyndham, 356 NLRB 765 (2011), which set forth a bright line rule that “an employee who protests publicly in a group meeting is engaged in initiating group action.”

The NLRB in Alstate, however, determined that the rule in WorldMark could result in illogical and inconsistent outcomes, and improperly conflated group settings with group complaints. In reaching its decision, the NLRB stated that the Act only provides protections if two elements are satisfied: (1) the activity must be “concerted”, and (2) the activity must be engaged in for the purpose of mutual aid or protection. As such, an action by a single employee is concerted only if the person was authorized to act on behalf of a group or if the employee is trying to induce group action. In the case at issue, the NLRB noted that the employee was not intending to bring a group complaint to the attention of management, but was instead making an individual statement. The NLRB went on to rule that, “[t]he fact that a statement is made at a meeting, in a group setting or with other employees present will not automatically make the statement concerted activity.”

Despite the ruling in Alstate, employers should always take care to consider the circumstances under which employee statements are made before taking any kind of disciplinary action.