In Sabo, Inc. the National Labor Relations Board (Board) found that the employer, a vending machine company, violated the National Labor Relations Act (NLRA) when it fired an employee who had expressed concerns about job security to a co-worker. Although the employer claimed it fired the employee for spreading gossip about her co-worker, the Board found, in a 2-1 decision, that the employer fired the employee because she engaged in protected, concerted activity which, in this case, consisted of the employee’s discussion with her co-worker about a feared job loss.
The NLRA protects employees who engage in concerted activity for mutual aid or protection. To the Board, the discussion between the two employees was “inherently concerted” because job security “[is] a vital term and condition of employment and the ‘grist on which concerted activity feeds’” and concerns about job security have a powerful impact on the rest of a work force and are protected whether or not engaged in for the purpose of inducing group action.
Member Miscimarra dissented. He did not believe the conversation between the two employees was protected. In his view, past NLRB and court cases establish that without some evidence that “[the private conversation] was engaged in…with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees,” a private conversation is not protected, concerted activity. Member Miscimarra warned that the majority’s “inherently concerted” theory could render all wage and job security conversations protected under the law “even if there is no group-action object and the conversation involves ‘mere griping’ or, as here, a fishing expedition.”
In the past, the Board has ruled that employee discussions about wages can be “inherently concerted” and thus protected under federal labor law. In Sabo, the Board expanded “inherently concerted” to reach discussions about job security and employers should anticipate that the current Board will find other subjects of concern to employees to be likewise protected.