Talk of Job Security Is “Inherently” Concerted and Protected
We all know by now that private employees are protected if they engage in concerted activity for their mutual aid or protection. We also know that the protections afforded employees under the NLRA can be interpreted quite broadly. The current NLRB has done just that in a case where one employee was speculating with another employee if somebody was going to be fired because a help-wanted ad for a vacant position had been posted in a local newspaper. The NLRB ruled that any talk by any employee about “job security” or possible firing was “inherently concerted” and therefore protected even if group action never happened or was never even contemplated.
Who Do You Think Is Going to Be Fired?
The facts are a bit messy, but they do serve as a lesson for employers. A vending company’s route driver’s father died suddenly, and the route driver was granted the balance of the week off by her employer. The next week on Thursday, as she was leaving to attend the cremation placement ceremony on Friday, she submitted a vacation request to be off work on that Friday and the following Monday and Tuesday. But her request was denied because there was no one available to fill in and service the customers on her route while she was gone. Nevertheless, she took that Friday off anyway – without permission.
Over the weekend, she saw a help-wanted ad in a local newspaper for a route driver position at an unidentified vending company. Based on that ad she speculated that she was going to be fired for taking the Friday off without permission. She approached a co-worker and asked him if he had seen the ad and asked who he thought might be getting fired. He said he didn’t know. However, after thinking about his co-worker’s question, he concluded that it might be he who was going to be fired. Concerned about his job, he then approached the company owners to ask if he was going to be fired. They assured him that he was not going to be fired and that his job was not in danger. Because he was upset, the owners were also upset that the route driver’s speculation and questioning had caused unnecessary worries for her co-worker. So, because she was absent without leave and because she was “circulating gossip that someone was going to be fired,” she was fired. She filed a charge with the NLRB.
NLRB to Employees: You Are Protected if You Speculate about Job Security
The NLRB held that her open speculation about somebody possibly being fired was protected concerted activity. Consequently, her firing because of her legally protected speculation was determined to be unlawful. The NLRB ordered the company to reinstate her with back pay going back to 2010 when all of this happened. The NLRB reasoned that the conversation between the two employees clearly concerned job security because they discussed whether the job posting meant that an employee was about to be discharged.
Further, the NLRB explained that the company’s reaction upon learning of the conversation illustrates why conversations about job security are inherently concerted. According to the NLRB, upon hearing that the route driver had suggested that someone would be fired, the company took the most dramatic action possible: it discharged her and announced the discharge and the unlawful reason for it to the remaining employees. In the NLRB’s view, such action would “inevitably shut down future discussions and any other concerted actions that might follow, because if anything would coerce employees in the right to act concertedly for mutual aid and protection, it would be discharging an employee for suggesting that another employee’s job might be on the line.”
Lessons for Employers
This 2 to 1 decision was issued despite the very strong dissent of former Member Hayes who would find that mere discussion of job security was not “inherently concerted.” Indeed, Member Hayes’ dissent pointed out that the majority would find as “inherently concerted” any discussion of wages, work schedules or other “vital term” of employment. He stated that the legal fiction of “inherently concerted” cannot substitute for affirmative proof of the concerted nature of the activity. Supporting this view, Member Hayes relied on a 1997 decision of the D.C. Circuit Court of Appeals that ridiculed the NLRB’s past reliance on this same rationale as “limitless and nonsensical.” Back then, the Court said that “the NLRB’s adoption of a per se rule that any discussion of work conditions is automatically protected as concerted activity finds no good support in the law.”
But that was then and this is now. Member Hayes is no longer a Member of the NLRB. The three remaining Members continue to enforce the NLRA despite serious constitutional challenges to its make-up that will ultimately be decided by the Supreme Court. In the meantime, this decision is the law, and private employers covered by the NLRA need to be aware that taking any action against an employee for engaging in an “inherently concerted” discussion can result in an “inherently” poor outcome.
Private employers should consider thinking twice before taking adverse action because of gossip, speculation or talk about anything related to:
- Job Security. Examples might include talk about layoffs, discipline, discharges, closings or subcontracting;
- Wages. Examples might include talk about what others make, the amount of a raise, the lack of a raise or bonus, how raises are determined, who determines the wages, desired wage increases or the timing of increases;
- Work Schedules. Examples might include talk about reduction in hours, increase in overtime, decrease in overtime, on-call schedules, call-back practices, lack of work practices, weekend work, vacation scheduling, holiday assignments, starting times and ending times; and
- “Vital Terms and Conditions of Employment.” This was the phrase used by the NLRB and appears to be “limitless” as the Court so described it back in 1997.
But for now it appears that any employee talking about any term and condition of his or her or anyone else’s employment – even with no intent to act concertedly – will be protected from adverse action because that talk is “inherently concerted.” For employers, it will be “inherently” difficult to ever determine what is “inherently” protected.
Reference: Hoodview Vending Co., (NLRB December 14, 2012).
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
