Friday, February 4, 2011

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.


  1. I have yet to see how the NLRB states, for example, an explicative-filled rant against a supervisor or an employer is, in any way, a limitation on an employees right

    to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

    The NLRB states, on their own web-site that

    " What are protected concerted activities?

    The National Labor Relations Act (NLRA) protects employees’ rights to engage in protected concerted activities with or without a union, which are usually group activities (2 or more employees acting together) attempting to improve working conditions, such as wages and benefits. Some examples of such activities include:

    a) 2 or more employees addressing their employer about improving their working conditions and pay;

    b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;

    c) 2 or more employees discussing pay or other work-related issues with each other.

    The NLRA also protects any individual employee’s right to engage in union support, membership, and activities.

    The NLRA protects an individual employee’s right not to engage in union activities or in other protected, concerted activities. "

    Just as I have the 1st Amendment right to say what I want, I can also be sued or arrested depending on what I say and where I say it.

    I would think the facts have to show that the employees actions (or inactions) are directly related

    "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

    Otherwise, you are stating an employee can say anything and can't be fired.

    Perhaps that is why many laws don't apply to Congress (Health Care Law, Civil Rights Act, etc.) or to the Military...

    Either way, I do not see how an explicative-filled rant against a supervisor in a public forum is any attempt to improve working conditions, to organize, or to provide for mutual aid or protection. All of this could be done privately between the employees-where it should stay.

  2. Thanks for your comment. I agree that expletives and namecalling are beyond the scope of the NLRA. For a good post along those lines, check out:

  3. On June 23rd, 2011, an ALJ made an NLRB ruling that was mostly favorable to me, but the ALJ appeared to confuse an allegation (that the acting general council had squashed)that interfered with my reinstatement and all back pay due.

    The employer now wants to settle the back pay, but I am concerned over the decision that misstates the facts going on record and that closure would seal that fact which could affect a wrongful discharge suit.

    I also have a pending DIR Retaliation complaint that close to being decided and forwarded the NLRB closing brief an decision.

    Can I file a wrongful discharge suit after winning an NLRB labor claim that found two violations under Sec 8? Or is there some preemption or other.

    Should I appeal the NLRB ruling and then sue in civil court? Or?

  4. Thanks for the comment Prof. Jake. Unfortunately, I cannot provide legal advice on Lawffice Space. Also, it sounds like you have some issues that will depend on your jurisdiction (ex. "wrongful discharge" often entails state common law/public policy). Shoot me an email ( if you would like to chat about possible representation, and let me know where you are - maybe I'll have a referral for someone in your area.