Seeking Witnesses for Individual Harassment Complaint Now Concerted Activity for the Purpose of Mutual Aid or Protection: NLRB

Practical Law Legal Update 5-578-2947 (Approx. 9 pages)

Seeking Witnesses for Individual Harassment Complaint Now Concerted Activity for the Purpose of Mutual Aid or Protection: NLRB

by Practical Law Labor & Employment

Background

Margaret Elias worked as a store cashier for Fresh & Easy. She wrote a message on a white-board, asking her superior if she could participate in the "TIPS" training program related to the sale of alcohol. The next day, she saw that someone had changed "TIPS" to "TITS" and drew a picture of a character urinating on her name. Elias notified her team leader.

Elias copied, by hand, the white-board picture and message onto a piece of paper. She asked three colleagues, including her team leader, to sign it. All three signed the document. Elias, who was loud and angry during these conversations, informed at least two of them that she planned to file a complaint.

Elias later wrote on the document, describing how her white-board message was altered and stating that she considered it sexual harassment. Elias' three colleagues stated that they were witnessing only that Elias' hand-written copy of the white-board contents was accurate, that they felt forced to sign the document, and that they were not helping Elias bring a sexual harassment complaint. One of the co-workers made a formal complaint against Elias for intimidating her to sign the document, and accused Elias of altering it after it had been signed.

Employee Relations Manager Jackson investigated Elias' complaint about the white-board incident and the intimidation complaint against Elias. During her conversations with Elias, Jackson:

Asked Elias why she asked her co-workers to sign the written document.
Instructed Elias not to obtain further statements from co-workers, so Jackson could conduct the investigation.
Told Elias that she could continue to talk to co-workers and ask them to be witnesses in her matter.

Through her investigation, Jackson:

Determined that the white-board alterations were inappropriate.
Disciplined the co-worker who made the alterations to the white-board.
Told Elias that she would be protected from retaliation, and could raise any future complaints.
Determined that the complaints against Elias had no merit.

Elias filed an unfair labor practice (ULP) charge against Fresh & Easy with the NLRB and an NLRB region issued a ULP complaint alleging, in part, that Fresh & Easy violated Section 8(a)(1) of the NLRA, based on some of Jackson's investigatory questions and statements (29 U.S.C. §158(a)(1)). An NLRB administrative law judge (ALJ) found that:

Elias did not engage in concerted activity for the purpose of mutual aid or protection under Section 7 of the NLRA by asking co-workers to be witnesses for a sexual harassment complaint, because:
- Elias' complaint was personal and not shared by other employees; and
- her goal in raising the issue to management was purely individual.
Since Jackson was not trying to deprive Elias of her rights, and it had the business justification of completing investigations about Elias' complaint, her co-workers' complaints and preventing disruption at the store, Fresh & Easy did not violate Section 8(a)(1) by:
- questioning Elias about why she sought her co-workers' signatures on the document; or
- instructing Elias not to solicit additional statements from co-workers.

The NLRB's General Counsel appealed by filing exceptions to the ALJ's findings with the Board.

Outcome

The Board majority (Chairman Pearce and Members Hirozawa, Johnson and Schiffer):

Determined that Elias engaged in concerted activity for the purpose of mutual aid or protection under Section 7 of the NLRA. Member Johnson concurred with the conclusion.
Overruled Holling Press, Inc., which held that seeking co-worker witnesses for an individual sexual harassment complaint, while concerted, is not for mutual aid and protection (343 N.L.R.B. 301, 303-304 (2004)). Member Johnson concurred in part.

The Board (Chairman Pearce and Members Hirozawa, Johnson, Miscimarra and Schiffer) unanimously held that Fresh & Easy did not violate Section 8(a)(1) by either:

Questioning Elias about why she obtained witness signatures on the hand-written white-board re-creation.
Instructing Elias not to obtain additional statements from co-workers.

The Board majority concluded that:

Elias engaged in concerted activity, because:
- while the object of concerted activity must be to initiate or induce group action, preliminary discussions (the start of any concerted activity) cannot be denied Section 7 protection simply because the discussions do not ultimately come to fruition;
- Elias' conduct was concerted in that she approached her colleagues to seek support for her attempt to raise a sexual harassment complaint to management; and
- Board precedent indicates that concertedness does not require co-workers to agree with, join or benefit from the soliciting employee's cause. The fact that Elias raised a personal complaint, not shared with others, does not diminish the concertedness of her activity.
Elias' concerted activity was for the purpose of mutual aid or protection, because:
- Board precedent holds that activity attempting to invoke the protection of statutes benefitting employees was engaged in for mutual aid or protection (Meyers Indus., 281 N.L.R.B. 882, 887 (1986) (Meyers II);
- even though Elias confronted alleged sexual harassment which was directed only at her, the harassment affected others as well. Therefore, soliciting support from co-workers in a statutory claim (such as Title VII sexual harassment) must be recognized as for mutual aid or protection; and
- based on the "solidarity" principle, employees that are solicited for support (including those solicited by Elias in this case), have an interest in assisting the aggrieved co-worker because they may be future victims of the same conduct.
Holling Press must be overruled because the Board in Holling Press:
- erroneously distinguished between different types of workplace grievances for purposes of determining whether the mutual aid or protection requirement is met;
- accepted that the solidarity principle may apply when a single employee is threatened with discipline;
- recognized that the solidarity principle applies to a single employee threatened with discipline, but erroneously held that it does not apply to sexual harassment matters because sexual harassment is not a common occurrence and any reciprocal co-worker assistance would be only theoretical; and
- deviated without explanation from Board precedent that held that the mutual aid or protection requirement is satisfied by merely the promise of future reciprocation for the employee who sought assistance.
(343 N.L.R.B. 301, 303-304 (2004).)

The Board unanimously affirmed the ALJ's conclusion that Fresh & Easy did not violate Section 8(a)(1) when Jackson instructed Elias not to seek co-worker statements, because:

An employer can prohibit employees from exercising their Section 7 right to discuss employer investigations of employee misconduct if it can show a legitimate business justification that outweighs that right.
Fresh & Easy showed a legitimate business justification that outweighed Elias' right to obtain additional co-worker statements. In particular:
- Jackson's instruction to Elias was narrowly tailored to address Fresh & Easy's need to conduct an impartial and thorough investigation of Elias' complaint and co-worker complaints against her;
- given the alterations Elias made to her document after her co-workers signed it, Jackson's instructions would reasonably be viewed as protecting the investigation's integrity, not restricting Elias' Section 7 rights; and
- Jackson did not prevent Elias from discussing the matter with co-workers or asking them to be witnesses.

The Board also unanimously affirmed the ALJ's conclusion that Fresh & Easy did not violate Section 8(a)(1) when Jackson asked Elias why she requested co-workers to sign her document, because:

While employers generally cannot question the motive of an employee's protected activity, an employer can, as part of a fair investigation, question employees about valid claims of threat or harassment even if the employee was exercising her Section 7 rights.
Since Jackson was investigating Elias' sexual harassment claims and the claims against Elias, and not attempting to inquire into Elias' motives for her protected activity otherwise, it was reasonable for her to ask questions that were important to reaching a conclusion in both issues.
Jackson's statement that Elias would be protected from retaliation and her instructions that Elias should report future incidents are relevant to determining whether Jackson's questioning was lawful.

In dissent, Member Miscimarra asserted that the Board majority erred by:

Expanding the definition of concerted activity under Meyers Industries, 268 N.L.R.B. 493, 496 (1984) (Meyers I) and Meyers II. In particular, he argued that:
- the Board should determine what is of group concern, not what ought to be of group concern;
- concerted activity requires an individual to act together with other employees and not just in the presence of other employees or on behalf of herself;
- an individual employee can engage in concerted activity if she truly brings a group complaint to management's attention;
- an individual's conversation with another employee can be concerted activity if it seeks to initiate, induce or prepare for group action;
- Section 7 protection is not triggered by a single employee invoking a statute enacted for a group; and
- claims that Elias intimidated her co-workers suggest that they were not acting together.
Expanding what constitutes seeking mutual aid or protection. In particular, he argued that:
- Board precedent requires a purpose to be shared by those individuals who are involved in the mutual aid or protection;
- Elias' complaint was solely on behalf of herself and no one took action for the purpose of extending mutual aid or protection to anyone else;
- the majority opinion essentially eliminates Section 7's mutual aid or protection requirement by holding that any concerted activity about an individual's complaint inherently involves mutual aid or protection;
- protecting each employee that brings individual complaints regarding non-NLRA rights is at odds with the NLRA policy that coverage should be limited to concerted activities by multiple employees who take collective action for the purpose of mutual aid or protection;
- applying Section 7 protections as broadly as the majority does will cause the process restrictions of the NLRA to limit many of the standard processes and rights typically allowed under other non-NLRA statutes that apply to the situation; and
- in the present case, the sexual harassment and intimidation complaints cannot be properly investigated if overbroad Section 7 protections restrict the questions and procedures which are required to resolve issues under other relevant laws.
Overruling Holling Press, because that decision:
- suggested that a separate inquiry be conducted into the issues of concerted activity and mutual aid or protection and does not find that all concerted activity is presumed to be for mutual aid or protection;
- rejected the proposition that the purpose of the concerted activity does not matter when assessing whether the mutual aid or protection requirement was satisfied; and
- did not create a Section 7 exemption for sexual harassment complaints, as the majority claims in the present case, but treated these claims the same as others by conducting an individual review of the record.

Miscimarra noted that while he agrees with the majority's holding that Fresh & Easy did not violate Section 8(a)(1) based on Jackson's questions and statements, the majority gives no explanation of what questions or statements would be violative in other matters.

Member Johnson:

Concurred with the majority that Elias, and the employees in Holling Press, engaged in concerted activity for the purpose of mutual aid or protection under Section 7. Johnson stated that in some instances, the purpose of providing mutual aid or protection to co-workers may be proven by an individual's complaint regarding conditions to which others are exposed, even when no other co-workers join in pursuing the claim. Analysis of the particular facts must trump generalizations.
Joined Miscimarra in dissenting from the majority's analysis, asserting that:
- the majority's holding creates overbroad Section 7 coverage;
- the majority created a presumption that employees who seek assistance from co-workers for a sexual harassment complaint act for the purpose of mutual aid or protection and thereby engage in Section 7 activity;
- a mere request for support does not automatically invoke an implicit offer of reciprocity; and
- Section 7 should not give the Board the power to be an "uberagency" that disregards the enforcement processes of other laws and agencies.

Practical Implications

The Board expanded what constitutes concerted activity for the purpose of seeking mutual aid or protection. In doing so, it extended Section 7 coverage to all efforts to seek assistance in filing an individual complaint with management, regardless of whether the co-worker solicited for help, agrees with the cause or participates in the complaint. The decision expands what activities the NLRA protects and consequently expands the NLRB's jurisdiction over a broader array of potential claims. Employers may expect an increase in ULP charges by employees alleging that their employers either:

Maintained policies or practices that infringed on their rights to engage in activity that previously would not have been protected under the NLRA.
Retaliated against them for engaging in activity that previously would not have been protected under the NLRA.

It remains to be seen how the Board will cite this decision when evaluating whether an employee engaged in concerted activity for mutual aid or protection in future cases. If the Board cites the case for a general principle that enlisting support for individual statutory claims constitutes concerted activity to seek mutual aid or protection, this case would truly eviscerate the mutual aid or protection requirement and make conducting investigations related to arguably concerted activities increasingly difficult.

This case is also noteworthy because it:

Showcases the Board's subtle retreat to pre-Banner Health precedent, Hyundai America Shipping Agency, 357 N.L.R.B. slip op. 80, (Aug. 26, 2011) regarding the lawfulness of requesting that employees curb discussions about matters currently under investigation. The US Court of Appeals for the District of Columbia Circuit recently vacated and remanded Banner Health in light of Noel Canning (Order, NLRB v. Banner Health Sys., DC Cir. Case No. 12-1377 (Aug. 1, 2014); for information about Banner Health, see Legal Update, Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB).
Imposes a relatively light remedial burden. The employer may not feel compelled to challenge on a petition to review in a US Court of Appeals and, consequently, the decision may never face direct appellate court review.

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