Monday, March 21, 2011
The NLRB recently issued a decision (2-1) in WorldMark by Wyndham that addressed whether activity is concerted. The case focused on an employer disciplining an employee who objected to a new dress code rule—requiring men to tuck in their shirts, including the Tommy Bahama shirts that was popular at the workplace. The majority fond it concerted under the Meyer Transportation “inciting action” rationale because he made the objection in the presence of other workers, a coworker joined in the protest, and the employer viewed the worker as “inciting” another worker to join in the protest. The Board also disagreed with the ALJ that the failure to discuss the action ahead of time was significant—an important point in this case, because a supervisor had just informed the worker of the new rule.
Member Hayes dissented, arguing that the was no evidence that the worker was trying to induce group action or act on behalf of his coworkers. He asserted further that there was no evidence that the employee or even knew of his coworkers’ views on the new rule. Under Hayes’ view, the coworker who joined in was a separate, spontaneous outburst that did not constitute concerted activity.
Also check out David Foley's case animation from the LaborRelated Blog.
Hat Tip: Dennis Walsh