NLRB's "Preemptive Strike" - COTW #26

Let's say an employee approaches her manager with a complaint. She claims she heard a rumor that someone who quit was brought back and given a higher salary. She says something like, "the whole unit should quit and come back with a raise!" To date, she has not acted in concert with anyone to address this issue. If the employer fires her, does she have a claim under the National Labor Relations Act (NLRA)? That's the setup for this week's employment law Case of the Week - Parexel International, LLC and Theresa Neuschafer, 5-CA-33245.

The NLRB held:

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 . . . . [L]ines of Board precedent [have held] that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action.

This decision is a warning for employers that launching a "preemptive strike" against an employee who merely intends to engage in concerted activity is a no-no.

HT: Jon Hyman of Ohio Employer's Blog: One is the loneliest number - unless you've filed an unfair labor practice charge. Jon sees some potential for this to be a pro-employer decision while covering commentary from others that this gives employees a cause of action any time an employee complains and gets fired.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.