In a 2-1 decision, the National Labor Relations Board (NLRB) held that a company violated federal labor law when it fired a licensed practical nurse (LPN) in order to prevent her from complaining about employee wages. Parexel International, LLC (January 28, 2011).
Section 7 of the National Labor Relations Act (Act) protects employee discussions about wages, and employer rules that limit such discussions violate the Act. In this case, an LPN asked another employee if he had received a raise. The LPN later spoke to her supervisor about the conversation and the apparent favored treatment of a group of employees. The company later questioned the LPN about her conversations and whether she had discussed the issues with other employees. The LPN denied she had discussed wages or the favored treatment issue with any other employees. Within a few days the LPN was fired.
The Administrative Law Judge (ALJ) concluded that the LPN did not engage in protected concerted activity because she had not consulted other employees about wages nor had other employees urged her to raise an issue with management about wages. Although the ALJ surmised that the termination could have been a “preemptive strike” to prevent the LPN from engaging in protected activity, the ALJ concluded that in the absence of evidence that the LPN had actually engaged in protected concerted activity, he could not find the LPN’s discharge to be unlawful and dismissed the unfair labor practice charge.
The NLRB reversed the ALJ’s decision and found a violation of the Act. The NLRB majority agreed that the Company had fired the LPN to prevent her from engaging in Section 7 activity, stating that “the policies of the Act and [NLRB] precedent” supported a conclusion that the discharge was unlawful. “It is beyond dispute that an employer violates Section 8(a)(1) by threatening to terminate an employee in order to prevent her from exercising her Section 7 rights.” As a result, “it follows that an employer similarly violates Section 8(a)(1) by simply terminating the employee in order to be certain that she does not exercise her Section 7 rights.” The NLRB majority observed that “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.”
This case presents another example of employee-friendly decisionmaking by the current NLRB. Now, more than ever, supervisors must be educated on the contours of protected concerted activity under section 7 of the Act and understand the actions an employer may lawfully take in response to such activity.