NLRB limits “Army of One” cases

Taking a cue from the longtime successful ad campaign, labor practitioners refer to a category of NLRB charges as so-called “Army of One” cases. The National Labor Relations Act protected only concerted activity, which generally means two or more people working together, to further their wages, hours and working conditions. In an Army of One case, that principle is extended to cover the protests of a single employee; the Army of One doctrine allows a single person, who doesn’t act in “concert” with anyone else, to assert a violation of the NLRA if he is acting on behalf of his colleauges.

In its 2011 decision WorldMark by Wyndham, the NLRB extended the Army of One doctrine to individual gripes that are asserted in a group setting. Before WorldMark, the Board had looked for actual evidence of “group activities” prior to the protest, such as evidence of an actual discussion between the workers discussing the complaint that the individual ended up lodging. In WorldMark the Board recognized the ability of a single individual to become an Army of One, i.e., to engage in NLRA-protected activities, by making a complaint in a group setting.

Now, the Board has reversed WorldMark. No longer is simply making a complaint in a group setting sufficient. Instead the Board identified five factors to be considered.

The fact that a statement is made at a meeting, in a group setting or with other employees present will not automatically make the statement concerted activity. Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. … (R)elevant factors that would tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely (as in WorldMark) to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

Applying this approach to the facts of this case, the Board rejected an airport skycap’s claim that he’d engaged in Army of One protected activity when he said (to a customer), in the presence of his colleagues, that “we” had performed a certain task “and we didn’t receive a tip for it.”  Even his use of “we” was held insufficient.

(I)ndividual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun.

Source: Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).