Tuesday, February 1, 2011

Did the NLRB Expand the Definition of "Protected Concerted Activity"?

Under Section 7 of the National Labor Relations Act ("NLRA"), employees are afforded the right to engage in protected concerted activities with or without a union, which are usually group activities (2 or more employees acting together) attempting to improve working conditions, such as wages and benefits. Examples of protected concerted activity, as displayed on the National Labor Relations Board's ("NLRB") website, are:
a) 2 or more employees addressing their employer about improving their working conditions and pay;

b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;

c) 2 or more employees discussing pay or other work-related issues with each other.
However, in a recent decision by the Board in Parexel International, LLC and Theresa Neuschafer, Case 5–CA–33245, the Board held that a termination was a preemptive strike to prevent an employee from discussing wage discrepancies with other employees was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights even though the employee had not discussed or complained to any regular employees about the issue, but had only complained to her supervisor. In finding the employee engaged in protected concerted activity under this rather novel situation, the Board wrote:
"That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. [Foot note omitted]. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act. [Foot note omitted] . What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity."

This is a major victory for employees across the land and could lead to an increase in litigation but it's not exactly easy to prove that an employer terminated an employee to "nip-it-in-the-bud" or feared the employee would subsequently engage in protected activity making it harder to terminate them. Hopefully the end result is employers perhaps taking the time to ease employee concerns over working conditions instead of simply terminating the cause of stir.

David Foley over at LaborRelated has a good illustration of the facts of this case.

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