Gossiping with Co-Worker about Employer's Help Wanted Ad was Inherently Concerted Activity: NLRB | Practical Law

Gossiping with Co-Worker about Employer's Help Wanted Ad was Inherently Concerted Activity: NLRB | Practical Law

In Sabo, Inc., d/b/a Hoodview Vending Co., the National Labor Relations Board (NLRB) affirmed its decision (initially set aside following Noel Canning) that an employee discussion about job security, including an employee gossiping about intentions behind an employer's help wanted advertisement and suggesting there would be a termination or layoff, is inherently concerted and protected under the National Labor Relations Act (NLRA). The NLRB held that the employer violated Section 8(a)(1) of the NLRA by terminating an employee in part for engaging in gossip that prompted a co-worker to incorrectly fear job loss even though there was no evidence that the gossip was intended to elicit mutual aid or protection or to spur concerted activity.

Gossiping with Co-Worker about Employer's Help Wanted Ad was Inherently Concerted Activity: NLRB

by Practical Law Labor & Employment
Law stated as of 31 Aug 2023 • USA (National/Federal)
In Sabo, Inc., d/b/a Hoodview Vending Co., the National Labor Relations Board (NLRB) affirmed its decision (initially set aside following Noel Canning) that an employee discussion about job security, including an employee gossiping about intentions behind an employer's help wanted advertisement and suggesting there would be a termination or layoff, is inherently concerted and protected under the National Labor Relations Act (NLRA). The NLRB held that the employer violated Section 8(a)(1) of the NLRA by terminating an employee in part for engaging in gossip that prompted a co-worker to incorrectly fear job loss even though there was no evidence that the gossip was intended to elicit mutual aid or protection or to spur concerted activity.
On April 30, 2015, a three-member panel (Board) heading the NLRB's judicial functions in Sabo, Inc., affirmed its original decision (which had been set aside following Noel Canning), that an employee discussion about job security is inherently concerted. Consequently, the NLRB held that the employer violated Section 8(a)(1) of the NLRA by terminating an employee in part for engaging in gossip about the employer's help wanted advertisement that prompted a co-worker to incorrectly fear job loss even though there was no evidence that the gossip was intended to elicit mutual aid or protection or to spur concerted activity. (362 N.L.R.B. slip op. 81 (Apr. 30, 2015).)

Background

On December 14, 2012, the Board issued a Decision and Order in this proceeding (see Sabo, Inc., 359 N.L.R.B. slip op. 36 (Dec. 14, 2012)). In that decision, the Board majority held that:
  • Job security is so central to employment terms and conditions that an employee discussion about job security is inherently concerted and protected by the NLRA.
  • A conversation that an employee (George) had with a co-worker (Boros) about a possible layoff at the company, based on an internet job posting in their respective positions, constituted protected concerted activity, regardless of whether George intended the discussion to elicit mutual aid or protection or to spur concerted activity.
  • Terminating George for her conversation that prompted Boros to incorrectly fear job loss violated Section 8(a)(1) of the NLRA.
The majority revived the inherently concerted doctrine over Member Hayes's dissent even though each federal court of appeals that has substantively reviewed the Board precedent endorsing that doctrine has rejected it. For more information about the December 14, 2012 Decision and Order, see Legal Update, Spreading Fear about Job Loss to Co-worker is Protected Concerted Activity: NLRB.
When the Board issued the December 14, 2012 Decision and Order, it was comprised of two members whose recess appointments the Supreme Court later held were invalid, precluding the Board from reaching the three-member quorum required to issue valid decisions (NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)).
The Board issued an order setting aside the Decision and Order in Sabo, Inc. for further consideration.

Outcome

In a 2-1 decision, the Board majority (Chairman Pearce and Member Hirozawa):
Member Miscimarra dissented, arguing that George did not engage in concerted activity when she spoke with Boros about a help wanted advertisement because she had no object of initiating or inducing group action. Miscimarra reasoned that:
  • In the Meyers Industries cases, the Board discussed the meaning of "concerted activity" and established the standard that controls whether an employee has engaged in concerted activity (Meyers Indus., 268 N.L.R.B. 493 (1984) (Meyers I); Meyers Indus., 281 N.L.R.B. 882 (1986) (Meyers II)).
  • In Meyers I, the Board:
    • rejected the per se standard of concerted activity created in Alleluia Cushion Co., as being "at odds with the [NLRA]" because it "artificially presume[d]" that "what ought to be of group concern . . . is of group concern" (221 N.L.R.B. 999 (1975); Meyers at 496);
    • held that "to find an employee's activity to be 'concerted,' it requires that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself (Meyers at 497)"; and
    • emphasized that "the question of whether an employee engaged in concerted activity is, at heart, a factual one, the fate of a particular case rising or falling on the record evidence" (Meyers at 497).
  • In Meyers II, the Board explained that a single employee's efforts to "induce group action" would be deemed concerted activity, based on the Mushroom Transportation Co. v. NLRB standard, in which the US Court of Appeals for the Third Circuit held that:
    • "a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees"; and
    • "[a]ctivity which consists of mere talk must, in order to be protected, be talk looking toward group action. . . . [I]f it looks forward to no action at all, it is more than likely to be mere 'griping'" (Mushroom at 8).
    (330 F.2d 683, 685 (3d Cir. 1964).)
  • Applying the Meyers standard, it is clear that George's conversation with Boros was not concerted activity, because George:
    • had risked discipline or discharge by leaving work early without permission in violation of Sabo's rules; and
    • reasoned that the help wanted ad must have been placed by Sabo because she abandoned her job for an afternoon and told Boros that she thought it meant that Sabo was going to fire someone and asked who he thought it would be. There is no evidence that George had an object of initiating, inducing or preparing for group action.
Member Miscimarra panned the "inherently concerted" doctrine revived and extended by the majority, noting that:
  • The idea that conversations about certain subjects are inherently concerted is irreconcilable with Meyers, which foreclosed the Board from using that kind of presumption when it adopted Mushroom Transportation's concept of concertedness. In Mushroom Transportation, the court held that a conversation qualifies as concerted activity if "it . . . appear[s] at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees."
  • Meyers differentiates between group action and griping. The majority's inherently concerted test erases this distinction because it includes all conversations regarding wages, work schedules or job security, even if there is no objective for group-action and the conversation involves mere griping or, as here, a fishing expedition.
  • The inherently concerted theory closely resembles the analysis from Alleluia Cushion because it is a per se standard under which the Board asks whether the topic addressed is "likely to spawn collective action" (Aroostook Cnty. Reg'l Ophthalmology Ctr, 317 N.L.R.B. 218, 220 (1995)), and, if it decides that it is, deems the activity "concerted" without regard to whether there was a group-action objective. This contradicts the holding in Meyers that "the question of whether an employee engaged in concerted activity is, at heart, a factual one, the fate of a particular case rising or falling on the record evidence." (Meyers I at 497) The Meyers Board clearly did not contemplate a factual inquiry that would begin and end with the conversation subject.
  • The "inherently concerted" doctrine has been uniformly rejected by appeals courts including the DC Circuit (to which any party harmed by an NLRB decision may petition for review), which has criticized this theory as being "nonsensical," "limitless" and having "no good support in the law" (Aroostook Cnty. Reg'l Ophthalmology Ctr., 81 F.3d 209, 214-15 (D.C. Cir. 1996)).
  • The cases the majority cites to assert that "contemplation of group action is not required in all circumstances" address a different issue altogether or are otherwise unsound.
Finally, Member Miscimarra argued that even if the inherently concerted doctrine could render George's conversation with Boros concerted, there was no evidence that the conversation had the "purpose" of fostering "collective bargaining or other mutual aid or protection," as Section 7 of the NLRA requires. For example:
  • Nothing about the conversation suggests that either employee had a purpose that involved mutual aid or protection.
  • George had a legitimate concern that she might be disciplined or discharged because she left work without authorization. This was clearly an individual concern.
  • George's conversation did not have a purpose of mutual aid or protection. In fact, George was obviously concerned that she (individually) might be discharged for her individual actions, and Boros misinterpreted their discussion as suggesting he (individually) might be discharged.
  • Boros's later actions did not reflect a purpose of mutual aid or protection. Boros mentioned his conversation with George to the owners of Sabo only when asked to explain the reason for his question whether he might be discharged. That question reflected a concern relating only to himself.
  • Even applying Fresh & Easy Neighborhood Market, which constitutes the outermost limit of "mutual aid or protection" under Section 7 of the NLRA, there was no mutual aid or protection purpose given George did not solicit any assistance from co-workers.

Practical Implications

This decision further expands the inherently concerted doctrine to gossip about job postings that spread fear of job loss, which the majority characterizes as employee discussions about job security. Any court of appeals that has substantively reviewed the inherently concerted doctrine in the past has rejected it as incompatible with the governing test set out in Meyers. It is likely that the standard will be challenged and further clarified in upcoming litigations.
However, in the meantime, employers should expect the current Board majority to:
  • Rely on this decision to permit the NLRB General Counsel to use the presumption of concertedness in place of evidence traditionally required under Wright Line, such as evidence that:
    • the employee discussed employment terms and conditions to spur on group action and not merely to raise individual gripes;
    • the employer had knowledge of the employee engaging in discussions about employment terms and conditions to spur on group action; and
    • the employer had particularized animus against an employee for engaging in discussions about employment terms and conditions to spur on group action.
  • Expand the inherently concerted doctrine beyond wages, work scheduling (Legal Update, Discussing Wages with Fellow Employees is Inherently Concerted Activity: NLRB) and job security discussions. As Member Miscimarra and others before him noted, logic will not likely be able to contain the spread of the inherently concerted doctrine, now that it has again been adopted.

UPDATE:

The current Board majority noted its interest in reconsidering cases like this one deeming conversations about certain topics to be "inherently concerted" (Alstate Maint., LLC, 367 N.L.R.B. No. 68, slip op. at 1, n.2 (Jan. 11, 2019); see Legal Update, NLRB Clarifies Analyses of Concerted and Protected Activities).

UPDATE:

In a decision issued August 31, 2023 and dated August 25, 2023, the NLRB overruled Alstate Maintenance. The NLRB held that Alstate Maintenance improperly restricted the Meyers I and II analyses rather than looking at the totality of the record evidence. It also held that the NLRB erred by overruling WorldMark by Wyndham. (Miller Plastic Prods., Inc., 372 N.L.R.B. No. 134 (Aug. 25, 2023); see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.)