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Employee Engages in Concerted Protective Activity When She Asks Coworkers to Sign a Document so She Can File a Sex Harassment Complaint With the Employer

By Thomas P. Brady / Aug 21, 2014

In Hollis Press Inc., 343 NLRB 301 (2004), the National Labor Relations Board held that an employee who filed a sexual harassment complaint with a state agency was not engaged in protected concerted activity when she solicited co-workers to be witnesses. In Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (2014), the National Labor Relations Board reversed the holding in Hollis Press. The Board majority held that "an employee seeking the assistance or support of his or her coworkers in raising a sexual harassment complaint is acting for the purpose of mutual aid or protection. This decision applies equally to cases where. . . an employee seeks to raise that complaint directly to the employer, or . . . to an outside entity."  Id. at 7.

Margaret Elias left a message to her supervisor on a white board in the break room. A coworker altered the message with an obscene word and a derogatory drawing. When Elias discovered the alteration, she asked her team leader how to file a sexual harassment complaint. He asked her why she would want to file a complaint. Elias became angry and left the room. Later in the day, Elias drew a copy of the altered message and cartoon and had three coworkers sign the drawing. The three employees thought that they were signing the drawing to indicate that it was an accurate representation of the altered message. None of them thought Elias was filing a sexual harassment complaint on their behalf, and one complained that Elias bullied her into signing the drawing. Elias admitted that she made the drawing because she was going to file a sexual harassment complaint for herself. The company investigated the alteration. During the investigation the employee relations manager asked Elias why she had the three employees sign the drawing. Elias responded that she did it for her own protection. The manager told her not to obtain any further statements from other employees so that the manager could conduct the investigation. The manager did inform Elias that she could talk to other employees and ask them to be witnesses for her. The employer discovered the person who had altered Elias's white board message and disciplined him. No disciplinary action was taken against Elias.

Elias filed an unfair labor practice charge claiming the employer violated Section 7 of the National Labor Relations Act (Act) by prohibiting her from obtaining witness statements from other employees. The Board reversed the administrative law judge's decision dismissing Elias's unfair labor practice charge. The Board noted that Section 7 protects concerted activity that is engaged in for the purpose of "mutual aid and protection." Despite the overwhelming evidence that Elias filed her sexual harassment complaint only for herself, the Board found that Elias was engaged in concerted activity because, "she approached her coworkers to seek their support of her efforts regarding this [her sexual harassment complaint] workplace concern." Id. at 3-4. The Board also found that Elias's concerted activity was for the purpose of "mutual aid and protection" even though Elias admitted that she filed the sexual harassment complaint for her own benefit, and the three witnesses who signed her drawing testified that they were not joining in her complaint. The Board reasoned that because Elias invoked the protection of a statute benefiting employees [Title VII], she was engaged in an activity for mutual aid or protection. Id. at 7. Finally, the Board found that the employee relations manager did not violate the Act when she told Elias not to obtain statements from other employees. According to the Board, the employee relations manager carefully tailored her instructions to ensure that the investigation was impartial and thorough and allowed the employee to talk to other coworkers to ask them if they would be witnesses. The employer was required to post an order indicating it would not coerce employees in the exercise of their Section 7 rights.

Member Miscimarra dissented finding that Elias was not engaged in concerted activity because the drawing Elias wanted the three employees to sign was not a petition or joint complaint. It was also not for the purpose of initiating, inducing or preparing for group action. Elias also did not engage in activity that was for the "mutual aid or protection" of other employees. Her complaint was an individual pursuit of a complaint that she presented on behalf of herself.

As the dissent points out, the majority opinion expands concerted protective activity to employees' claims that the employer violated a statute meant to benefit employees. 

Employers should exercise care during investigations to ensure that limiting an employee's ability to speak with other employees is based on maintaining the integrity of the investigation. Specifically, before prohibiting employees from discussing their complaint or an investigation, employers should have a legitimate business justification to prohibit employees from discussing ongoing investigations. The Board has identified four legitimate business justifications:

  • An investigation witness needs protection,
  • Evidence is in danger of being destroyed,
  • Testimony is in danger of being fabricated, or
  • There was a need to prevent a cover up.

See Banner Health Systems, 358 NLRB No. 93 (2012). There may be other reasons which justify rules preserving the integrity of investigation. Employers should discuss this with their labor and employment attorneys before applying a rule limiting employees from discussing investigations. The majority holding allows employees who are complaining about violations of other statutes meant to protect employees, like federal and state civil rights acts, to claim the protections of the National Labor Relations Act when attempting to obtain supporting witnesses or statements.

If you have any questions about the decision, please contact Tom Brady at (313) 965-8291 or tbrady@clarkhill.com, or your Clark Hill labor and employment attorney.