Spreading Fear about Job Loss to Coworker is Protected Concerted Activity: NLRB

Practical Law Legal Update 1-523-4244 (Approx. 6 pages)

Spreading Fear about Job Loss to Coworker is Protected Concerted Activity: NLRB

by PLC Labor & Employment

Published on 08 Jan 2013 • USA (National/Federal)

In Sabo, Inc., the National Labor Relations Board (NLRB) held that an employer unlawfully terminated an employee because she had a conversation with another employee about job security, which was protected concerted activity under the National Labor Relations Act (NLRA).

In a decision dated December 14, 2012, a three-member panel (Board) heading the NLRB's judicial functions issued a 2-1 decision (Member Hayes dissented) in Sabo, Inc., holding that:

A conversation that an employee had with a coworker about a possible layoff at the company, based on an internet job posting, constituted protected concerted activity.
Terminating that employee for her conversation that prompted the coworker to incorrectly fear job loss violated Section 8(a)(1) of the NLRA.

In its analysis, the Board majority explained that employee activity is protected under Section 7 of the Act when it is "concerted and engaged in for the purpose of mutual aid or protection." (Holling Press, Inc.). A conversation constitutes concerted activity when it either has:

The object of initiating, inducing or preparing for group action.
Some relation to group action in the interest of the employees.

(Meyers II.)

However, contemplation of group action is not required in all circumstances. For example, the Board has stated that wage discussions cannot be be subject to a blanket prohibition because they are "inherently concerted" activity (Automatic Screw Products Co.) because they are:

A "vital term and condition of employment".
The "grist on which concerted activity feeds".
Often preliminary to organizing or other action for mutual aid or protection.

(Aroostook County Regional Ophalmology Center.)

The Board majority found that the lack of evidence that the terminated employee's conversation contemplated future group action is not determinative, because, like wage discussions, employee conversations about job security are "inherently concerted."

The Board majority further stated that if the NLRA did not protect the ability of employees to discuss job security without fear of retaliation, employers would be able to chill employees in the exercise of their right to act concertedly to protect this vital term and condition of employment.

In his dissent, Member Hayes contended that:

The terminated employee's conversation about job security:
- was only of personal concern to the employee;
- did not contemplate or intend to induce future group action;
- relies chiefly on the rationale in Aroostook, which the US Court of Appeals for the District of Columbia Circuit found a "limitless and nonsensical...adoption of a per se rule that any discussion of work conditions is automatically protected activity [with] no good support in the law"; and
- is just the most recent decision that extends the protections of individual job complaints far beyond statutory limits.
The Board's holding in this case:
- impairs the legal validity of the Meyers II test; and
- extends the protection of individual job complaints beyond statutory limits.

This case expands the scope of "protected concerted activity" further than the recent Hispanics United broad interpretation of concerted protected activity. For more information, see Legal Update, Employees' Facebook Posts about Co-workers Job Performance Criticisms was Protected Concerted Activity: Facebook Firings Unlawful: NLRB and the Board's decisions in Parexel Int'l, LLC and Wyndham Resort.

Court documents:

Spreading Fear about Job Loss to Coworker is Protected Concerted Activity: NLRB | Practical Law