NLRB Continues to Expand the Meaning of “Concerted Activities” Under the NLRA

May 5, 2014

In another expansive ruling, an Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) found that allegedly firing an employee for filing a collective action under the Fair Labor Standards Act interfered with the employee’s right to organize under Section 7 of the National Labor Relations Act (NLRA). 200 E. 81st Rest. Corp., NLRB ALJ, No. 2-CA-115871, 4/29/14.

Under NLRA Section 7, employees have the right to engage in concerted activities with or on behalf of other employees in order to improve working conditions. However, on April 29, 2014, ALJ Raymond Green in New York continued the NLRB’s effort to stretch the definition of “concerted activities” beyond its intended meaning. Although the term traditionally is interpreted to protect only the concerted efforts of at least two employees, Green held that one employee’s decision to file a collective action triggered Section 7 rights. Although Green found no evidence that the employee filed the lawsuit with other employees or with their authority, Green held that the nature of a collective action showed a desire to “initiate,” “induce” and “prepare for group action.”

Further still, the ALJ found that—even if filing a collective action failed to constitute a concerted activity on its own—firing an employee for filing the lawsuit showed that the employer was motivated by an improper “belief or suspicion” that the employee was engaged in or planning to engage in concerted activities, even if that belief was later proven incorrect.

This decision does not come as a surprise. It represents yet another example of the NLRB’s efforts to expand the NLRA’s reach to nonunion employees. In a similar fashion, the NLRB in its 2011 Parexel Int’l, LLC decision (356 NLRB No. 82) held that an employer interferes with Section 7 rights if the employer terminates an employee in anticipation that the employee might exercise Section 7 rights. There, the NLRB held that a nurse’s complaints to a supervisor about working conditions was a protected concerted activity, even though the nurse never spoke with any other employees. According to the Board, the firing was a “preemptive strike” designed to prevent her from complaining to the other employees, and therefore was unlawful.

As these two decisions demonstrate, the NLRB has effectively turned the Section 7 inquiry from a straightforward analysis of the employee’s actions into a murky inquiry into the employee’s (and employer’s) intentions or future plans. Given this ever-evolving issue, employers should seek guidance before firing any employee who complains about working conditions. Otherwise, that employer could face an unfair labor practice charge for a perceived preemptive strike to suppress concerted activities.

If you have questions about this recent development or other matters related to the National Labor Relations Act or NLRB, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.