• No Concerted Protected Activity, No Problem--The NLRB Recognizes "Pre-Emptive Strike" Retaliation
  • March 17, 2011
  • Law Firm: Obermayer Rebmann Maxwell Hippel LLP - Philadelphia Office
  • If employers were concerned that the newly constituted National Labor Relations Board (the “NLRB”) under the Obama Administration would continue to expand employee rights under the National Labor Relations Act (the “Act”), those concerns were recently validated.  In Parexel International, LLC, 356 NLRB No. 82 (January 28, 2011), the NLRB held that an employer’s discharge of an employee was unlawful despite the fact that the employee had not actually engaged in any protected activities.  The NLRB found that an employer violates the Act simply by discharging an employee in order to be certain that she does not exercise rights protected by the Act. 

                        In general, an employer commits an unfair labor practice in violation of the Act by interfering, restraining or coercing an employee in exercising their rights under Section 7 of the Act.  Section 7 provides, in relevant part, that “an employee shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  For over two decades, the NLRB and courts have held that “concerted activities” protected by Section 7 are those that are engaged in with or on the authority of other employees, and not solely by and on behalf of the employee herself. 

                        In Parexel International, LLC, the employer discharged one of its employees after she complained to her supervisor about the wages she was being paid, as compared to the wages that another employee received for performing the same job.  The discharged employee filed an unfair labor practice charge with a regional NLRB office claiming that she had been discharged in retaliation for exercising her rights under Section 7 of the Act.  

                        In December 2007, after a hearing, an NLRB administrative law judge determined that the employer’s discharge of the employee did not violate Section 7 of the Act because there was no evidence that the employee’s complaint about her wages was for the “mutual aid or protection” of her co-workers or that she had complained to initiate or induce group action.  There was also no evidence that she intended to engage in such activities.  However, although the employer presented evidence that the employee’s complaint was the “last straw” in a progression of employee disciplinary issues, the administrative law judge determined that the employer would not have terminated the employee but for her complaint about her wages. 

                        On appeal, the NLRB declined to address whether the employee actually had engaged in protected Section 7 conduct.  In a 2-to-1 decision, the NLRB found that the employer’s discharge of the employee amounted to a “pre-emptive strike” to prevent the employee from being able to engage in protected Section 7 activities.  For the NLRB, it was enough that the employee’s discharge was triggered by the complaint she made to her supervisor about her wages.  In support of its decision, the NLRB noted that simply maintaining a rule that prohibits the discussion of wages violates the Act.  The NLRB went on to state:

    If the maintenance of such a rule violates the Act, a fortiori, the discharge of an employee to prevent her from engaging in such conduct violates the Act.  When an employee is discharged on that basis, both she and the employees with whom she would have spoken are denied the opportunity to compare their wages and other terms of employment to determine whether to take further concerted activity.

    In essence, and perhaps most importantly, the NLRB decided that the employer discharged the employee not for what she actually did (or even for what she intended to do), but for what she might do at some future point in time.    

    As an employer, attempting to protect against or avoid legal risk related to what an employee might do in the future can be a disconcerting concept.  It is therefore imperative that, as the NLRB expands the scope of the Act’s protections for employees, all employers (union and non-union) tread lightly and carefully in crafting and enforcing workplace policies and procedures.  Obermayer attorneys are available to answer your questions regarding how this latest NLRB decision may impact your business.