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Concerted/Protected Activities: Single Employee Complaints

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We frequently confront the question of whether  complaints by a single employee to a supervisor about some condition of employment, such as double standard with respect to disciplinary actions against  employees or favoritism in  job assignments, constitute concerted/protected activity.

Concerted/protected activities by an  employee are those engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself. Meyers Industries (Meyers II), 281 NLRB 882 (1986). In this regard,  it is well established that individual action seeking to enlist the support of fellow employees with the object of initiating or inducing group action for mutual aid and protection constitutes concerted/protected activity. See Whittaker Corp. 289 NLRB 933 (1988).

It is an unfair labor practice to interfere with, restrain, or coerce employees for engaging in concerted/protected activities.

However, if the facts show that the employee, complaining to a supervisor,  was acting on his/her self-interest and centered on his/her gripping about some term or condition of employment, the prerequisite that the activity be conducted for the purpose of mutual aid or protection is lacking. The activity, therefore, is not protected. The employer would not commit an unfair labor practice, in that circumstance, if  it disciplines the complaining employee.

This is a very fact intensive area of the law and all of the circumstances and background surrounding  the complaining employee conduct and activities must be carefully analyzed in order to determine if the conduct or activity is concerted/protected. See Fresh and Easy Neighborhood Market, 361 NLRB 151 (2014).