The National Labor Relations Act (“NLRA”) makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 rights include, among other things, the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” We always thought that if the National Labor Relations Board (“NLRB”) was asked to decide whether an employee had illegally been disciplined or fired for engaging in protected concerted activity, there actually had to be some sort of concerted activity. Guess again!
On January 28, the NLRB ruled in Parexel Int’l, LLC, 356 NLRB No. 82 (2011), that an employer violated the law for terminating an employee as a “preemptive strike” to prevent the employee from discussing her concerns regarding wages with co-workers. The employee, a licensed professional nurse, was told (untruthfully) by a South African co-worker that he got a raise because their manager was also South African. The employee complained to her immediate supervisor that this was unfair. The manager and Human Resources learned of this conversation grew concerned about the “rumor” that South Africans were receiving favorable treatment, and the employee was discharged.
At the hearing, the Administrative Law Judge (“ALJ”) decided in favor of the company, stating “I have not encountered any precedent for the proposition that I can find a violation on this basis without evidence that the alleged discriminate[e] had in fact engaged in concerted protected activity.”
On review, two of the three members of the NLRB disagreed: “If an employer acts to prevent concerted protected activity–to ‘nip it in the bud’–that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.” In support of their decision, the Majority found it “critical” that “the employer’s intent [was] to suppress protected concerted activity.” The NLRB ordered the employee be reinstated, with a make-whole remedy including backpay.
Bottom Line
Even if an employee has not actually engaged in protected and concerted activity, if the employee is disciplined or discharged to prevent such activity from taking place, a violation of the NLRA may be found. Proceed with caution when dealing with employees under these circumstances.