Tuesday, February 1, 2011

Huge Expansion of "Protected Concerted Activity"?


David Foley over at Labor Related has a terrific post on a National Labor Relations Board decision issued on Friday.  The case is Parexel International, 356 NLRB No. 82 (2011).  A nurse complains to a supervisor (but not to other employees) about wages and working conditions.  The ALJ found no protected/concerted activity, because the employee had not acted in concert with other employees.  The Board, however, reversed, ruling that because the firing was a "preemptive strike" done to stop the employee from complaining to the other employees, the discharge was unlawful.  Thus, as Foley writes, "a termination designed to nip-in-the-bud employee complaints about wage discrepancies was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights."

The Board writes that its decision

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 [footnote 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 [footnote omitted]. What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity.

It seems to me that the Board is expanding the definition of protected-concerted activity a bit more then it's admitting.  Now, every time an employee complains and is subsequently fired, the employee can file an unfair labor practice charge, and it's a fact issue as to whether the employer was motivated by a desire to nip the complaint in the bud or by something else.

Any thoughts?



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In this Perexel case, the Employer expressly asked the discriminatee whether she had discussed the wage matter with other employees. During the trial, the Employer's witness from human resources candidly admitted that the Employer was concerned that the discriminatee had discussed the matter with other employees. Thus, in this case, there was an evidentiary basis for finding that the Employer discharged her in order to prevent her from talking to other employees.

I disagree with RB that "every time" an employee complains and gets fired, the NLRB will allege it was a "pre-emptive strike" to prevent concerted activities. There will have to be some evidence, as there was in Perexel, to show such motivation.

Posted by: Stephanie LaTour | Feb 2, 2011 7:28:33 AM

My thinking was similar to Stephanie's. Assuming one has nip in the bud evidence, the case bears some resemblance to the Mike Yurosek/Mushroom Transportation preparation for group action line. I'm really wondering, though, how this impacts the old Alleluia Cushion cases. If an individual's talking to the supervisor is preparation for group action, why not individually filed complaints alleging violations of other laws?

Posted by: Michael Duff | Feb 4, 2011 7:14:01 AM

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