National Labor Relations Board Broadly Expands Scope of Activity Protected by NLRA
On Friday, the National Labor Relations Board published a decision holding that an employer violated Section 8(a)(1) of the Act for terminating an employee before she engaged in protected "concerted activity." In Paraxel Industries, LLC, 356 NLRB No. 82 (Jan. 28, 2011), the ALJ had concluded that there was no violation of the Act when the employer fired employee Theresa Neuschafer because she had not consulted with other employees about her workplace complaints, nor had any other employee encouraged her to speak up her issues. The Board, however, reversed, holding that the employer's termination was a "pre-emptive strike to prevent her from engaging in activity protected by the Act.”
The Charging Party was an individual Licensed Practical Nurse (LPN). She asked a co-worker, who had recently returned to work after having quit earlier, about her wages. The co-worker lied, leading Neuschafer to believe that the co-worker and spouse who worked with them were paid a higher wage rate, in part because they were South African like certain key management personnel. Neuschafer complained to her immediate supervisor about her wages, remarking that perhaps everyone should quit and come back with a raise. Higher management later interviewed Neuschafer who reiterated her complaint, but indicated clearly that she had not discussed the issue with any co-workers. She was subsequently terminated.
In concluding that her termination violated Section 8(a)(1) of the Act, the Board reasoned:
Neuschafer’s discharge had the obvious effect of restricting her own further protected discussions of wages and possible discrimination with other employees, thus interfering with her Section 7 rights. As discussed above, the discharge also had the effect of keeping other employees in the dark about these matters, thus preventing them from discussing, and possibly inquiring further or acting in response to, substandard wages or perceived wage discrimination. We therefore find that the Respondent’s discharge of Neuschafer violated Section 8(a)(1) of the Act.
The Board expressly declined to determine whether or not her behavior constituted "protected, concerted activity." But in this holding, the Board has clearly and broadly expanded the range of conduct protected by the National Labor Relations Act. Nearly any individual complaint by an employee might possibly, maybe, potentially one day provide the basis for concerted behavior if enough employees subsequently become aware of it so that perhaps one more employee discovers -- or subsequently decides -- he or she may share a similar concern.
To be sure, there were troubling facts alleged in this case with regard to activity protected by other federal employment statutes -- most notably, Title VII's anti-retaliation provisions. But now an employer who terminates an employee who has in the past complained about a particular individual work issue may also face 8(a)(1) exposure -- notwithstanding the fact that the employee never took any concerted action regarding the issue.
Other resources and commentary:
- David Foley's creative case animation and commentary at his LaborRelated blog
- "Huge Expansion of 'Protected, Concerted Activity'?" -- Workplace Prof Blog
- Meyers Industries, 268 NLRB No. 73 (1984) -- cited by Member Hayes in dissent:
"I note that finding a Sec. 8(a)(1) motivational discharge violation in the absence of any actual concerted activity is unprecedented, and, at the very least, in tension with Meyers Industries, supra. I have serious reservations about this finding and the potential breadth of its application in future cases."
