Vanderbilt Law Review

First Page



The National Labor Relations Act (NLRA or the Act) governs the relationship between employers and employees in the United States. Specifically, section 7 of the Act 3 defines the basic rights of employees and section 8(a)4 defines employer unfair labor practices. Section 8(a)(1) generally proscribes employers from interfering with employees in the exercise of section 7 rights.' Thus,many unfair labor practice cases turn on whether section 7 of the Act protects the employee activity. Section 7 protects "concerted activities" engaged in "for the purpose of collective bargaining or other mutual aid or protection."' Courts frequently struggle to determine whether given employee activities with which an employer has interfered are "concerted activities."' This determination is particularly difficult when one employee acts alone instead of with other employees.

The National Labor Relations Board (NLRB or the Board)formally announced the doctrine of constructive concerted activities in 1966 in Interboro Contractors, Inc. Under this doctrine an individual employee's attempt to enforce a provision of a collective bargaining agreement is "concerted activity" even if the attempt does not contemplate group action." During the years since the Board promulgated the Interboro doctrine, the circuit courts split on the issue of whether and in what circumstances individual activity could constitute concerted activity. The Supreme Court recently resolved the conflict by approving the Interboro doctrine in NLRB v. City Disposal Systems, Inc. Although the Interboro doctrine is theoretically inapplicable in a nonunion context, the Board established a collateral doctrine in 1975 in Alleluia Cushion Co." In Alleluia Cushion the Board held that individual activity seeking to enforce statutory occupational safety rights was concerted activity absent a showing that other employees disavowed the activity.16 No circuit court ever approved the Alleluia Cushion doctrine and the Board recently overruled it in Meyers Industries.

This Recent Development examines the doctrine of constructive concerted activities in union and nonunion contexts in light of both the Supreme Court's approval of the Interboro doctrine and the NLRB's rejection of Alleluia Cushion. Part II traces the history of NLRB and circuit court application of the constructive concerted activities doctrine in union and nonunion contexts. Part III discusses the City Disposal and Meyers Industries decisions. Part IV analyzes these decisions individually and conjuctively and examines the ramifications of the current "definition" of individual concerted activities. Finally, part IV of this Recent Development argues that the two decisions together result in an inconsistent application of section 7 protection to individual "concerted" activities and suggests a consolidated City Disposal-Alleluia Cushion analysis for constructive concerted activities issues in both union and nonunion settings.