By Kevin Stawicki

Law360 (March 1, 2021, 10:35 PM EST) -- Labor attorneys continue to grapple with determining what worker conduct is considered concerted activity protected by the National Labor Relations Act, particularly as it relates to strikes and workplace safety issues during the coronavirus pandemic.

The National Labor Relations Board's recent memos indicate the agency's direction toward expanding the definition of concerted activity under Section 7 of the NLRA, which lets workers complete "concerted" activities in order to obtain "mutual aid or protection," attorneys said Monday in a presentation to an American Bar Association committee on the NLRA.

About a year into the pandemic, the NLRB regional directors and the board are taking a closer look at what amounts to concerted activity, and they are increasingly less inclined to give employers the benefit of the doubt, said Kyle T. Abraham of management-side firm Barran Liebman LLP in Oregon.

"There has been leeway at first, allowing employers to do what they wanted to do," Abraham said. "But as things have stabilized a little bit ... there's been some pulling back."

The board's recent guidance related to COVID-19 has largely referenced the NLRB's 2019 decision in Alstate Maintenance LLC,  which upended an Obama-era precedent that a worker's gripe can qualify as concerted activity under the NLRA if it's made in front of colleagues, ruling against a JFK International Airport porter who was fired for complaining about inadequate tips.

In a dissent, then-member and current Chairman Lauren McFerran chided the majority for misreading the WorldMark ruling, scrapping it without being asked by the parties to do so, and imposing "sharp new restrictions (unsupported by precedent) on what counts as 'concerted' and 'mutual aid or protection'" under the NLRA.

McFerran's dissent and her issue with the scope of concertedness represents an area in which the board will likely give considerable attention moving forward, particularly COVID-19 issues, said Amanda Jaret, assistant general counsel for United Food and Commercial Workers.

"This question about what it takes to show that there's an effort to induce group action is one that we're going to see a lot of activity in terms of pandemic-related [protected and concerted activity]," Jaret said.

Guidance recently released by the board also shed light on how the NLRB is poised to expand the scope of concerted activity, Abraham and Jaret said.

A July memo, for example, concluded that nursing home Hornell Gardens didn't violate the NLRA when it fired a trio of nurses who raised concerns that they weren't given enough protective gear or adequate access to hand sanitizer. Those grievances weren't protected activity because they reflected individual gripes, not an attempt to bring a group concern to management's attention, the memo said.

Additional evidence of any group discussions could have shifted the decision in the workers' favor, Abraham said.

"That would have made a difference if there was evidence that would have been presented that there had been those discussions prior to the employee speaking out," he said.

The memo exposes an area where more clarification from the board is needed on what it takes to cross the threshold into protected, concerted activity, Jaret said.

"[It] shows the limitations of the Alstate Maintenance framework because it requires a formalistic showing that an employee is characterizing things in just the right words," Jaret said.

--Editing by Haylee Pearl.

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