The management community’s concerns that a National Labor Relations Board (NLRB) dominated by Democratic appointees would interpret the National Labor Relations Act (NLRA) to broadly expand employee rights under the law were validated by the NLRB’s recent decision in Parexel International, LLC.
The NLRA grants all employees—unionized or non-unionized—the right to engage in protected concerted activity and prohibits employers from discriminating against employees who engage in such activity. It has long been the law that employees are engaged in protected concerted activity when they talk with each other about their wages, hours and working conditions and that an employer may not discipline or discriminate against employees who engage in such discussions.
In Parexel, an employee was fired after complaining to her supervisor about a perceived wage disparity, even though she never discussed the issue with fellow employees. An NLRB administrative law judge ruled that Parexel did not violate the NLRA because the employee had not discussed the wage issue with her co-workers and thus had not engaged in protected concerted activity. The NLRB, however, reversed the ALJ and ruled that Parexel fired the employee as a “preemptive strike” in order to prevent her from discussing the wage issue with her co-workers. As the NLRB explained:
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, for example, by discussing wages with co-workers. 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. Indeed, the Board has often held that an employer violates the Act when it acts to prevent future protected activity. (footnote omitted)
Parexel was a 2-1 decision, unsurprisingly with Chairman Leibman and Member Becker in the majority. In his dissent, Member Hayes described the majority’s finding as “unprecedented” and stated that he had “serious reservations” about the “potential breadth of its application in future cases.”
Parexel opens the door to employees who are discharged—or experience similar adverse employment actions—after complaining to management to file unfair labor practice charges based on the “preemptive strike” theory. For employers, Parexel adds yet another, more nuanced layer of risk to employment-related decisions, and one that is not strictly limited to unionized workplaces.