Enter to open, tab to navigate, enter to select
Calling Colleague To Warn That His Job Is in Jeopardy Is Inherently Concerted: NLRB
Practical Law Legal Update w-004-4971 (Approx. 7 pages)
Calling Colleague To Warn That His Job Is in Jeopardy Is Inherently Concerted: NLRB
by Practical Law Labor & Employment
| Law stated as of 31 Aug 2023 • USA (National/Federal) |
In Component Bar Products, Inc., the National Labor Relations Board (NLRB) held that a worker who calls his colleague to warn him that his job is in jeopardy has engaged in inherently concerted protected activity under the National Labor Relations Act (NLRA).
On November 8, 2016, in Component Bar Products, Inc., a majority of the panel (Board) heading the NLRB's judicial functions held that a worker who called his colleague to warn him that his job was in jeopardy engaged in inherently concerted protected activity under the NLRA. This is the third time in recent years that the NLRB has deemed a subject of discussion inherently concerted, even though federal appeals courts have uniformly rejected the Board's earlier adoptions of the evidentiary shortcuts and presumptions that are part and parcel of the inherently concerted activity theory. (364 N.L.R.B. No. 140 (Nov. 8, 2016).)
James Stout worked as a quality technician for Component Bar Products, Inc., an automotive parts manufacturing company. Component Bar maintained a personal conduct policy in its employee handbook which subjected employees to discipline or termination for an offense.
Stout saw that a co-worker (Burgess) was not at work. Burgess, who had recently resigned and then rescinded his resignation, was sick but had not called Component Bar to alert his supervisors to his absence. A supervisor (Yeakey) told Stout that Burgess no longer worked there. Stout called Burgess, asked why he had not called in to tell his superiors that he was sick, and told him "I don’t think you have a job and [Yeakey's] upset with you." Burgess hung up on Stout and called Component Bar, stating that he did not appreciate an employee calling him to tell him he was fired.
Component Bar terminated Stout's employment for "misconduct" because he had involved himself in another employee's personnel activities. The employer later claimed that Stout also violated a company policy concerning cell phone use while working.
An NLRB administrative law judge (ALJ) concluded that Stout's discharge violated section 8(a)(1) of the NLRA because his warning to Burgess constituted protected concerted activity.
The Board majority (Chairman Pearce and Member McFerran) affirmed that:
- The activity was inherently concerted.
- The activity was concerted under Meyers I and Meyers II (Meyers Industries, 268 N.L.R.B. 493, 496 (1984) (Meyers I); Meyers Industries, 281 N.L.R.B. 882 (1986) (Meyers II)).
- Component Bar unlawfully:
- terminated Stout for engaging in concerted activity;
- told Stout the unlawful basis for the termination (Double Eagle Hotel & Casino, 341 N.L.R.B. 112, 112, n. 3 (2004)); and
- maintained overbroad work rules prohibiting "[i]nsubordination or other disrespectful conduct" and "[b]oisterous or disruptive activity in the workplace" (Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004)).
The Board has previously held that:
- Discussion about the following are inherently concerted:
- If there is a link between the alleged concerted discussions and matters about the workplace or employees' interests, the discussions tend to be for "mutual aid or protection" (see Fresh & Easy Neighborhood Market, 361 N.L.R.B. No. 12 (Aug. 11, 2014); Legal Update, Seeking Witnesses for Individual Harassment Complaint Now Concerted Activity for the Purpose of Mutual Aid or Protection: NLRB).
Member Miscimarra:
- Concurred that:
- Stout engaged in concerted activity under Meyers I and Meyers II by alerting Burgess that his job was in jeopardy and attempting to help Burgess keep his job; and
- Component Bar unlawfully terminated Stout for engaging in concerted activity.
- Dissented from the majority's:
- recognition of the "inherently concerted" theory and its extension of the theory to this case, noting that appeals courts have " uniformly rejected the theory of inherently concerted activity" (see Trayco of So. Carolina, Inc. v. NLRB, 927 F.2d 597 (4th Cir. 1991); Aroostook Cty. Reg'l Ophthalmology Ctr. v. NLRB, 81 F.3d 209 (D.C. Cir. 1996) (criticizing the inherently concerted theory as "nonsensical," "limitless," and having "no good support in the law.");
- continuing to consider notice of a termination for an unlawful reason a separate unfair labor practice (ULP) from that termination under Double Eagle (341 N.L.R.B. 112 (2004). Miscimarra views the notice part of the termination act and therefore the associated ULP as cumulative; and
- continuing to apply the "reasonably construe" prong of Lutheran Home as it has in recent years for the reasons he noted in his Beaumont Hospital dissent (see William Beaumont Hospital, 363 N.L.R.B. No. 162 (Apr. 16, 2016)).
- Argued that the Board should evaluate an employer's policies by striking a "proper balance" between:
- legitimate justifications for the policies; and
- potential adverse impact on NLRA-protected activity.
UPDATE:
The current Board majority noted its interest in reconsidering cases like this one deeming conversations about certain topics to be "inherently concerted" (Alstate Maint., LLC, 367 N.L.R.B. No. 68, slip op. at 1, n.2 (Jan. 11, 2019); see Legal Update, NLRB Clarifies Analyses of Concerted and Protected Activities).
UPDATE:
In a decision issued August 31, 2023 and dated August 25, 2023, the NLRB overruled Alstate Maintenance. The NLRB held that Alstate Maintenance improperly restricted the Meyers I and II analyses rather than looking at the totality of the record evidence. It also held that the NLRB erred by overruling WorldMark by Wyndham. (Miller Plastic Prods., Inc., 372 N.L.R.B. No. 134 (Aug. 25, 2023); see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.)