NLRB Adopts “Preemptive Strike” Theory Of Discrimination
In a landmark decision that likely foreshadows the intention of the National Labor Relations Board ("NLRB" or "Board") to rework its definition of "concerted" activity, the Board has ruled that an employer violated the National Labor Relations Act when it preemptively fired an employee to "prevent concerted protected activity." Even though it was undisputed the employee had not, in fact, engaged in concerted protected activity, the Board ruled that proof of an intended preemptive strike against an employee to prevent concerted protected activity "is unlawful without more." Parexel International, LLC, 356 NLRB No. 82 (2011).
Because the employer purposefully ascertained that the employee had not yet engaged in concerted activity and terminated her "before she could stir up . . . concern about wages or possible discrimination among other employees," the NLRB viewed the termination as an interference with the employee's protected right to discuss these matters. The Parexel decision is applicable to both unionized and non-union employers.
The Board's analysis in Parexel is a departure from its well-established precedent that in order to be concerted and, thus, within the protection of the Act, activity must be "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Myers Industries (Myers II), 281 NLRB 882 (1986).
The Administrative Law Judge in Parexel had previously rejected the General Counsel's "preemptive strike" theory as contrary to Myers II because he found no legal precedent for a violation of the Act without evidence that the alleged discriminatee had in fact engaged in concerted protected activity.
Relying on Monarch Water Systems, Inc., 271 NLRB 558 (1984) and other cases in which the "employer mistakenly believed" an employee was engaged in concerted protected activity, Board Member Becker and Chairman Liebman disagreed with the Judge. They argued that alleged attempts to "nip [such activity] in the bud" are contrary to "policy" and "other lines of precedent" finding that employees who engaged in no concerted protected activity are protected from adverse action. Neither Monarch Water Systems nor any of the other cases, however, found a violation when it was agreed that the employee had not, in fact, engaged in concerted protected activity. Indeed, Monarch Water Systems involved an employer's threat against an employee who had engaged in protected activity in concert with another employee.
Parexel is a dramatic departure from NLRA law and creates a new trap for the unsuspecting employer. The Board may now issue complaints against employers based solely on an employee's unsubstantiated accusation that he or she was subject to an adverse action intended to prevent his or her engagement in concerted protected activity. Of course, employers should rely on a well-documented, legitimate business justification for employee discipline, as this defense remains available notwithstanding Parexel.
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©2011 Sherman & Howard L.L.C. March 3, 2011