For several years now, union and non-union employers have been stuck between a rock and a hard place because of dissonance between anti-discrimination laws and the National Labor Relations Act (NLRA). Consider the following situation: An employer can discipline its employees based on discriminatory or harassing behavior and then face an unfair labor practice charge if the employees claim that their conduct was protected concerted activity under the NLRA. Alternatively, an employer can choose not to discipline its employees for such conduct and then get caught in the crosshairs of the Equal Employment Opportunity Commission or a state agency for violating a federal or state fair employment law.

Although the current National Labor Relations Board (NLRB) has not addressed this specific issue, its recent decision in Alstate Maintenance, LLC, 367 N.L.R.B. No. 68 (2019), suggests that it may address the issue soon. In Alstate Maintenance, the Board held that an employee’s gripe to a supervisor — made in front of other employees — does not qualify as protected concerted activity.

The NLRB’s decision signals a narrowing of what constitutes protected concerted activity under the NLRA, which is good news for businesses that want the Board to resolve the conflict between fair employment laws and the NLRA.

The Tension Between Labor and Employment Laws

The Board’s decision in Cooper Tire, 363 N.L.R.B. No. 194 (May 17, 2016) illustrates the tension between the NLRA and anti-discrimination laws and policies.

In Cooper Tire, an employee was picketing when he made racist remarks to a group of African-American replacement workers. Specifically, the employee said, “Hey, anybody smell that? I smell fried chicken and watermelon” and asked, “Hey did you bring enough [Kentucky Fried Chicken] for everyone?” when the African-American replacement workers crossed the picket line. The employer fired the employee based on his racist remarks, because the employer reasonably believed that “making racist comments is not protected activity” and that “firing an employee because he makes racist comments cannot violate the Act.”

In a decision that surprised many employers, the Board held that because the conduct occurred on the picket line, it was protected concerted activity under the NLRA. Thus, the employer could not terminate its employee based on his racist comments. The Board went so far as to say that “even the most vile language and/or gestures, standing alone, do not forfeit the protection of the Act, so long as those actions do not constitute a threat.”

Baby Steps: The Board Narrows its View of What Constitutes Protected Concerted Activity

The Alstate Maintenance decision may indirectly limit Cooper Tire in one sense, but it does not resolve the underlying tension between Board precedent and anti-discrimination laws. In Alstate Maintenance, a skycap at JFK International Airport was terminated after he refused to move a soccer team’s equipment. The employee, in front of his coworkers, complained that he had done a “similar job a year prior and didn’t receive a tip for it.” The Board held that the termination was legal, because the employee’s complaint about the tipping habits was a “mere gripe” and not protected concerted activity. The Board further noted that, although the employee had made the complaint in front of other employees, it was not a “group complaint” and thus not entitled to the protections of the NLRA.

In its decision, the Board stated that it would be “restoring” well-established Board precedent limiting what constitutes a “group complaint.” That precedent was established in two 1980s decisions known as Meyers Industries (I & II). Under the “Meyers standard,” an action by one employee qualifies as concerted action only if the employee is trying to induce group action or if the employee is authorized to act on behalf of a group. The Board also listed a series of cases that “arguably conflict” with its Meyers Industries decisions and stated that the Board “would be interested in reconsidering this line of precedent in a future appropriate case.”

A challenge for employers is that the Board did not reference Cooper Tire or the harassing or discriminatory conduct involved in Cooper Tire in its Alstate Maintenance decision. For that reason, employers must still walk a fine line when it comes to disciplining and/or discharging employees engaged in certain actions that may appear to be unlawful under fair employment laws but that could also merit the protections of the NLRA. As the Board continues to refine its position, employers must train supervisors, managers, directors, and the like on the developing intersections of labor and employment law.