An Employer Must Not Retaliate Against an Employee for Others’ Activity

In several recent cases, the National Labor Relations Board reminds employers that illegal retaliation against a worker can occur even if they were not directly involved in the protected actions of others – whether co-workers or unions.

Protected Concerted Activity. The National Labor Relations Act gives employees, whether unionized or not, the right to engage in concerted activities for their mutual aid or protection (i.e. protected concerted activity or PCA), which includes both informal activity as well as activity by a union on behalf of the represented employees. The Act further prohibits employers from interfering with that right – including by engaging in retaliation that is intended to deter others from engaging in PCA.

Co-Worker Activity. In the first case, Morgan Corp., an employee was discharged for disclosing his raise to other employees, who then complained as a group regarding their own wages. Wages are clearly a term of employment that is covered by the NLRA, and employees may not be prohibited from discussing them – an issue that arises particularly with older companies that have legacy policies that restrict such discussions. Here, the Board found that the employee’s discharge “was inextricably linked” to the other employees’ PCA, and that “by discharging [the employee], [the employer] intended to suppress protected concerted activity among his co-workers.”

Union Grievance. In the second case, New York Paving, Inc., the union filed a grievance alleging that the employer was utilizing smaller work crews than required under the collective bargaining agreement. An arbitrator agreed, and the employer then told the union that because of the ruling, there would be changes to the operations and layoffs. Although the Act provides that expressing views, arguments or opinions do not amount to an unfair labor practice as long as such expressions do not contain a “threat of reprisal or force or promise of benefit,” the Board found that the employer’s notice crossed over from “merely predicting economic consequences of unionization to threats of reprisal” (e.g. permanent layoffs). Moreover, the employer made no showing that the layoffs were for legitimate, nondiscriminatory reasons – it did not establish that they were required by seasonal slowdowns (the same ones it experienced in years prior) or economic reasons arising from the arbitration ruling.

Lessons for Employers. Employers should keep in mind that even those employees not directly engaged in PCA are protected from retaliation. It is important to ensure that any adverse action has an objective basis and is consistent with how the employer has handled similar situations in the past.