The employer's "honest belief," protected concerted activity, and mixed motive cases under the NLRA

It has been a hectic week for me, so just now getting to this big decision from the Third Circuit: MCPC, Inc. v. NLRB. It's a virtual treasure trove of legal guidance for employers wrestling with issues of protected concerted activity under the National Labor Relations Act (NLRA). The setup is pretty straightforward:

• Employee is at a lunch with other employees and management, where he complains that they need more engineers at work, but instead the employer is throwing a bunch of money at an exec. Thie appears to be "protected concerted activity" under the NLRA because the employee was acting in concert with the others at lunch, for mutual aid and support, to address the terms and conditions of their employment.

• Employer later calls the employee into a meeting to grill him about where he got that info. The employee hims and haws, and (allegedly) feeds them some lies.

• The employer fires the employee for accessing the exec's confidential salary info and lying about how he obtained that info... or was it retaliation for his "protected concerted activity" from the lunch meeting?

That last question is the case in a nutshell.

Not official use.

A different legal standard applies depending on whether the employee's misconduct occurred in the course of his protected concerted activity:

Wright Line

In "mixed motive" cases (essentially where there appears to be a mixture of lawful and unlawful motivations for the termination), and the alleged misconduct did not arise out of the protected concerted activity, then generally the Wright Line standard applies:

Where an employer argues that it discharged the employee for reasons unrelated to his protected activity, such as tardiness or poor work performance, we rely on the so-called "mixed motive" or "dual motive" discharge test set forth by the Board in Wright Line. Under this test, if the General Counsel makes a prima facie showing that protected conduct was a motivating factor in the employer's decision, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Wright Line is designed to preserve what has long been recognized as the employer's general freedom to discharge an employee "for a good reason, a poor reason, or no reason at all, so long as the terms of the [Act] are not violated.

(quotations and citations omitted).

Burnup & Sims Standard

However, if the alleged misconduct occurred during the protected concerted activity, then the employer's "honest belief" is not necessarily enough:

[W]here the employee is discharged for allegedly engaging in misconduct during his protected activities . . . an employer's good faith that an employee committed misconduct is not the last word on the lawfulness of its adverse employment action: "[§] 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. Under this test, after the employer carries its burden of showing that it held an honest belief that the employee engaged in misconduct, the burden then shifts to the General Counsel to "affirmatively show that the misconduct did not in fact occur.

(quotations and citations omitted).

In MCPC, Inc., the Court concluded that the alleged misconduct did not occur in the course of the protected concerted activity. Essentially, the employee's alleged acquisition of the exec's salary, and allegedly lying about in the meeting, did not occur at the lunch, which is where the protected conduct occurred. So, Wright Line applies.

So, what was the final conclusion? The Court agreed that the lunch conversation was protected concerted activity, but remanded to the NLRB to apply Wright Line and consider "whether that activity or MCPC's belief that [the employee] engaged in misconduct or dishonesty formed the basis for his discharge."