NLRB Divides Sharply On Employee Concerted Activity For 'Mutual Aid Or Protection'

In a complex, twenty-eight page opinion, a sharply divided NLRB has ruled that when an individual employee seeks assistance from fellow employees with respect to a violation under Title VII (or other workplace laws), the action is not only concerted but also presumptively for the purpose of mutual aid or protection, and thereby also covered by the National Labor Relations Act ("Act"). Fresh & Easy Neighborhood Market, Inc., 360 NLRB No. 12 (2014). This decision is important because it broadens the activities which are protected under the Act and potentially complicates employer investigations into allegations of sexual harassment or other conduct alleged to have violated a variety of federal, state and local workplace laws.

The heart of the legal dispute in the case is found in Section 7 of the Act, which sets out the protected rights of employees under the Act:

Employees shall have 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 otherconcerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). [Emphasis added.]

For many years, the NLRB has held that under Section 7, there is a separate analysis for whether employee conduct was "concerted", and if it was, whether it was "for the purpose of . . . mutual aid or protection."

The case here involved both questions. In summary, it involved an individual employee who felt that she was being sexually harassed by remarks directed at her that had allegedly been written on a "white board" by a manager. In order to preserve evidence of what was written on the white board before it could be erased, the offended employee copied it on paper and asked fellow employees who had seen the writing on the white board to sign her paper. This was presumably to preserve and establish collaborative evidence of what had been written on the white board. There was no evidence that the offended employee was seeking to initiate group action or solicit a common complaint from her fellow employees.

Following an investigation by the employer, and resulting actions with which the offended party was dissatisfied, she file an...