According to Jason Galanter, a former engineer for IT firm MCPc, and the NLRB, Galanter was fired after mentioning an executive’s salary during an informal lunchtime conversation with several coworkers. According to the Company, however, he was fired for twice lying to the management while it was conducting an investigation into the lunchtime conversation.

While this case is not yet decided, the questions asked by the Third Circuit Court of Appeals are noteworthy. For example, they questioned whether Galanter’s actions could be considered concerted when the record indicated his co-workers barely participated in the conversation – one of whom only nodded in response to Galanter’s comment. “Isn’t there a requirement that the activity be engaged in with the object of initiating, inducing, or preparing for group activity? Without that, then it’s [unprotected] griping,” asked U.S. Circuit Judge Cheryl Krause.

This case is a good reminder to employers that, while the protections of Section 7 activity have been dramatically extended by the current National Labor Relations Board, individual comments unrelated to group activity or not seeking to bring about change effecting a group of workers is not automatically protected conduct for which discipline or termination is prohibited. Unfortunately, it may require appealing incorrect Board rulings up to the Court of Appeals before employers’ rights are vindicated.