NLRB Takes First Step to Restore More Limited Definition of “Protected Concerted Activity”

A 3-1 majority of the National Labor Relations Board announced last week its intent to level set what constitutes “protected concerted activity” given that the Board has over the years “blurred the distinction between protected group action and unprotected individual action.” In its decision in Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), the Board opined: The applicable standard [for protected concerted activity] should not sanction an all-but-meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor. In addition, the protection afforded by the Act to engage in protected concerted activity requires a clear standard that can be relied upon by employees who seek to engage in such activity and by employers who must determine whether particular employee conduct is within or outside the protection of…

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