Over the past few weeks, we have documented the NLRB’s efforts to expand worker rights through rule-making and General Counsel directives. On January 28, 2011, however, the Board went back to its traditional means of fashioning federal labor policy by issuing its decision in Parexel International, LLC., 356 NLRB No. 82 (January 28, 2011).
In Parexel, the charging party had a conversation with a co-worker about whether he received a wage increase after he had left and then returned to work for the company. He indicated (apparently falsely) that in fact he had received a raise and so did his wife who also had left and returned. The charging party then went to her supervisor, repeated the tale from her co-worker and then suggested that her entire unit should quit and return so they could get raises. The supervisor then told management about the conversation, which resulted in the charging party being summoned to discuss the matter. The charging party reiterated her conversation with the co-worker and stated her belief that the company, which had a significant number of employees from South Africa, was favoring the South Africans when it came to wages. When questioned, the charging party denied having spoken with any of her co-workers regarding her concerns. A few days later, the employee was terminated.
Section 8(a)(1) of the National Labor Relations Act makes it illegal to terminate an employee for engaging in "protected concerted activity." One form of protected concerted activity is to talk to co-workers to raise issues of mutual concern about wages or other working conditions. The NLRB Judge (ALJ) in this case concluded that the company had not violated the National Labor Relations Act because the employee, who had not discussed her concerns with any co-workers, had not yet engaged in any protected activity. In reaching this conclusion, the ALJ noted:
In some respects, [the charging party’s] termination was a pre-emptive strike to prevent her from engaging in activity protected by the Act. See Compuware Corp., 320 NLRB 101, 102-103 (1995). However, I have not encountered any precedent for the proposition that I can find a violation on this basis without evidence that the alleged discriminate (sic.) had in fact engaged in concerted protected activity. Therefore, I decline to affirm the complaint on this basis.
On appeal, a three-member panel of the NLRB, however, disagreed, adopting a “pre-emptive strike” theory that expands the scope of protected activity for employees by rejecting any requirement that actual concerted activity take place prior to finding a Section 8(a)(1) violation. Specifically, the Board stated, “If an employer acts to prevent concerted protected activity – to 'nip it in the bud' – that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.” “What is critical,” the Board concluded, was “the employer’s intent to suppress protected concerted activity.” On the specific facts of this case, the Board noted:
[The charging party’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 [the charging party] violated Section 8(a)(1).
Non-unionized employers frequently lose track of the fact that employees’ Section 7 rights under the NLRA include the right to discuss their wages with each other and that the right extends to non-union as well as union workers. Many non-union employers, however, still enforce policies, often unwritten, that forbid or at least discourage employees from comparing wage information with each other. On this count, the Board noted:
[W]e have often found that maintenance or enforcement of a rule against discussing wages effectively interferes with employee rights and violates Section 8(a)(1) even if no employee has yet engaged in protected activity and been disciplined under the rule … If 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 and to determine whether to take further concerted action.
The Board’s Parexel decision unmistakably provides yet another shot in the arm to union organizing efforts. In fact, the Board noted the significance of wage discussions to unionization by stating:
The Board has long held that Section 7 ‘encompasses the right of employees to ascertain what wages are paid by their employer, as wages are a vital term and condition of employment.’ In fact, wage discussions among employees are considered to be at the core of Section 7 rights because wages, ‘probably the most critical element in employment,' are the ‘grist on which concerted activity feeds.’ Discussions about wages are often the precursor to organizing and seeking union assistance. But whether such discussions lead to union activity or not, our precedents provide that restrictions on wage discussions are violations of Section 8(a)(1) (Citations omitted.)
Employers, whether unionized or not, therefore should understand that their motivation in chilling concerted activity, not whether actual concerted activity has already taken place, will determine whether Section 8(a)(1) has been violated. Employers can also be sure that unions will be using the Parexel decision to their advantage to encourage employee discussions about wages and other terms and conditions of employment in order to potentially spark union interest.
In the next few days, we will address other recent NLRB pronouncements that have been somewhat lost in the shuffle, but nevertheless could have significant impact on federal labor policy. Stay tuned…