United States: National Labor Relations Board Majority Holds That Seeking Co-Worker Assistance With An Individual Harassment Complaint Is Protected Activity Under The Act; Overrules Holling Press, Inc.

Last week, the NLRB took an exceptionally broad view of what constitutes "concerted activity" and what kind of efforts are aimed at "mutual aid or protection" under the National Labor Relations Act. For employers, this could mean increased Board scrutiny of internal investigations into employees' complaints of harassment.

In Fresh & Easy Neighborhood Market, Inc., an employee's whiteboard message to her supervisor was altered with, among other things, a drawing of a worm or peanut urinating over the employee's name. The employee handwrote a copy of the defaced whiteboard message and asked three co-workers to sign the copies attesting to the accuracy of her depiction. She told each of the co-workers that she wished to use the signed copies in support of a complaint of harassment. None of the co-workers believed they were aiding the employee in bringing a complaint; in fact, one of her co-workers made her own complaint against the employee, alleging she had "bullied" her into signing the document and altered the document after she signed it. When the employer's human resources manager began a formal investigation into the whiteboard incident and the co-worker's complaint of bullying, she asked that the employee not seek any further attestations from co-workers and asked the employee why she believed she needed such attestations. The HR manager also told the employee that she was free to speak with co-workers about her complaint and to ask them to serve as witnesses for her during the investigation.

The administrative law judge found that the employer did not violate Section 8(a)(1) of the NLRA by instructing the employee not to seek additional statements from co-workers or by questioning the employee about why she felt she needed to obtain her co-workers' signatures, because the employee had not engaged in "concerted activity" for the purpose of "mutual aid or protection." To the contrary, the judge found that the employee's complaint was personal and that her goal in raising the issue with management was purely individual. The Acting General Counsel appealed the judge's decision to the Board.

By way of background, Section 7 of the NLRA grants employees the "right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) specifically forbids an employer "to interfere with, restrain, or coerce employees in the exercise" of these Section 7 rights. The preliminary question before the Board therefore was whether the employee's efforts fell within Section 7 of the Act as "concerted activities for the purpose of...mutual aid or protection."

On appeal, the Board held that the employee's actions in seeking co-worker signatures were indeed "concerted," (i) despite the employee's subjective intent to file an individual—not a joint—complaint, (ii) despite the lack of a shared objective, and (iii) regardless of the co-workers' motivations in signing the copies. In other words, it matters not whether an employee is acting on his or her own selfish motivations or whether co-workers intend to assist the employee in the selfish pursuit. Under this new precedent, all that matters is that an employee initially seeks some kind of group action related to a matter concerning the workplace or employee interests.

The Board then held that the employee's actions were for "mutual aid or protection," despite the fact that the employee was the only intended beneficiary of the harassment complaint. Again, the Board declined to consider the parties' subjective intent, citing instead to the "solidarity principle," that what's good for one employee is good for all.

With these holdings, the Fresh & Easy decision overrules the Board's 2004 decision in Holling Press, Inc.. There, the Board held that a company had not violated the NLRA by retaliating against an employee for soliciting support from co-workers in support of her sexual harassment claim. The Board reasoned that the complaint of harassment was for the employee's personal benefit only, and the employee's actions, therefore, did not constitute protected Section 7 rights.

In the wake of this seeming sea change in policy, the Board nevertheless held that Fresh & Easy did not violate Section 8(a)(1) of the Act because it had a legitimate business interest in conducting an impartial and thorough investigation of the employee's and her co-worker's claims.

Perhaps most frustrating, however, is that the Board was careful to state that its determination was limited to the specific facts of this case. This leaves employers in a difficult spot, with little to no guidance on how to balance their obligations under anti-discrimination laws to conduct investigations into complaints of harassment with employees' Section 7 rights under the National Labor Relations Act.

Only time, and further Board guidance, will dictate the best course. In the meantime, employers should consider the following when investigating an employee's discrimination or harassment complaint:

  • Do not prohibit the employee from asking co-workers to serve as witnesses.
  • Be clear with the employee that he or she has the right to bring subsequent complaints.
  • Assure the employee that no adverse action will be taken against him or her based on his or her own personal efforts in investigating the complaint.
  • And remember that whatever the Board holds yesterday, today, or tomorrow, you likely have a legitimate business interest in conducting an impartial and thorough investigation of facially valid complaints of discrimination and harassment.

We will continue to monitor the Board's decision-making in this area for any further guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Erin C. Horton
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