Flip Flops Should Be Limited to Footwear: An Analysis of the NLRB’s Ever-Changing Interpretations of Concerted Activity Under the NLRA

After a period of labor hostility, Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to equalize the bargaining power between employers and employees, encourage collective bargaining, and protect “the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” Nine decades later, its terms and provisions still inspire debate. Section 7 of the NLRA protects, among other things, employees’ right to engage in concerted activities. Because the makeup of the National Labor Relations Board (the “Board”), tasked with interpreting the NLRA, is vulnerable to changes in presidential administrations, the Board has flip-flopped on the issue of what activities constitute concerted activities under section 7. As a result, employers and employees alike are left unsure of how to comply with or exercise their rights under the NLRA.

Four major Board decisions have expanded or contracted the definition of concerted activity, creating both employer- and employee- friendly results along the way. Some interpretations of the term would protect individual employees, acting alone and with no evidence of group support. In contrast, other interpretations protect employees only when they band together with their coworkers or act alone, but with support from others or with an intention to induce their coworkers to act with them.