Continuing a trend we’ve reported on in previous blog posts, the National Labor Relations Board (NLRB) recently handed down yet another decision expanding the protections afforded to employees under the National Labor Relations Act (NLRA).
In Sabo, Inc., 362 NLRB No. 81, the NLRB held that Sabo, a vending-machine servicing company, illegally terminated a vending machine route driver, LaDonna George, for voicing concerns about job security to a fellow employee. Over a vigorous dissent, a 2-1 majority found that George’s expression of job security concerns to another employee was protected, concerted activity under the NLRA and terminating her for that activity was unlawful.
The facts are as follows: One Friday, George did not service her route and left work early without notifying management in violation of company rules. That weekend, George saw a “help wanted” ad placed by a local vending machine company. She surmised that her company had placed the ad and that she was on the chopping block.
The following week, she had a brief conversation with a coworker, Steve Boros, about whether he had seen the ad. George speculated that the ad meant their company was about to fire someone and she asked Boros who he thought it might be. Boros told George that he didn’t know, but he believed that George was implying that he was going to be discharged. There was no evidence that, in discussing the matter with Boros, George’s had any intention to induce or initiate any kind of group action.
Boros went to the owners of the company and expressed concern about his job security. The owners assured Boros that he was not going to be fired and quizzed him about why he had raised the issue. After he told the owners about his conversation with George, the owners terminated George for gossiping and telling other employees they were going to be fired.
The NLRB found that George’s termination was unlawful because her conversation with Boros constituted protected concerted activity under the NLRA and ordered the company to reinstate George with full back pay. The NLRB held that employee discussions about “job security”—like discussions about wages—were “inherently concerted” because “job security is about the very existence of an employment relationship, and a statement about an employee’s being let go has a powerful impact on the work force…” The majority went on to say that, because discussions about “job security” were “inherently concerted,” such discussions were also “protected” even in the absence of any evidence that they were “engaged in with the express object of inducing group action.”
NLRB member Philip Miscimarra wrote a dissent highly critical of the NLRB’s decision. He objected to the majority’s use of the “inherently concerted” theory to find the discussion between George and Boros protected by the NLRA, noting that that theory was contrary to established NLRB precedent that “draws a distinction between conversations that look toward group action and ‘mere griping.’” He warned that, under the majority’s reasoning, “all conversations regarding wages, work schedules, or job security” would be protected by the NLRA “even if there is no group-action object and the conversation involves ‘mere griping’ or, as here, a fishing expedition.” Member Miscimarra would have found George’s termination lawful because, during her brief discussion with Boros about the “help wanted” ad, “George did not ask Boros to do anything, let alone to do something for George.”
This decision is yet another reminder of how far the current NLRB is willing to go to uphold employee conduct as protected concerted activity under the NLRA.
It is certainly not difficult to imagine the NLRB extending the “inherently concerted” theory to protect employee discussions about other subjects. Indeed, this slippery slope is very well oiled.