Employee, fired after mentioning of a help-wanted ad to a co-worker, was fired in unlawful retaliation for engaging in “inherently concerted activity,” according to the National Labor Relations Board. Sabo, Inc. d/b/a Hoodview Vending Co. and Assoc. of Western Pulp and Paper Workers’ Union, 362 NLRB No. 81, April 30, 2015).
Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.
The NLRB recently expanded the class of activities falling under Section 7 protection to include certain topics that it deems “inherently” concerted – for instance, telling an employee not to discuss wages and threatening to discharge him if he did so was held to be “inherently concerted activity,” even though the alleged individual gripes to other employees were not meant to initiate or support group action.
Last month, (April 2015), two of the three members of an NLRB panel reversed an administrative law judge’s decision, and found that an employee, LaDonna George, who was fired for gossiping after a brief discussion with a co-worker about a help-wanted ad, was engaged in activity protected by the NLRA. The panel’s majority took the position that because the discussion – in which George voiced concern that her employer was planning to fire one of its employees – may have been premised on the issue of job security, it was “inherently concerted activity.”
In a detailed dissent, the third Board member, Philip Miscimarra, set forth his rationale for disagreeing with the expansion of the class of inherently concerted activities. Stating his position that the theory of “inherently concerted activity” has no good support in the law, Miscimarra went on to say that when activity involves only one speaker and one listener, it can be protected only if “at the very least” the activity “was engaged in with the object of initiating or inducing or preparing for group action,” or had some other relationship to group action taken in the employee’s interest. The majority disagreed, and LaDonna George was reinstated to her position.
Until recently, the cases have been clear: while contemplation of group action is not specifically required in every circumstance in which concerted activity is found to exist, a prerequisite for Section 7 protection always has been that the activity be conducted for the purpose of “mutual aid or protection.” The Board’s recent decisions have been moving the bar, and indicate that the definition of “inherently concerted activity” may be broadening to include circumstances in which a mutuality of purpose is not clearly established.