The Obama Board’s Erosion of the ‘Concertedness’ Requirement

I. Background

In 1975 the National Labor Relations Board issued a famous (or infamous, depending on your perspective) decision in Alleluia Cushion Co., ¹221 N.L.R.B. 999, 91 LRRM 1131 (1975). which adopted the “constructive concert” theory regarding when an employee acting alone satisfies the “concerted activities” requirement in Section 7 of the National Labor Relations Act. Unless an employee engages in such an activity “for collective bargaining or other mutual aid or protection,” the employee does not have a Section 7 right to engage in that activity with impunity to discharge or discipline.

According to Alleluia Cushion’s ...