Contributed by Jeffrey Risch
The National Labor Relations Board has indicated that, going forward, it will play a larger role in both union and non-union employment issues. Major shifts in its practice and policy will have a serious impact on U.S. employers in any industry, in any geographic location, and regardless of union affiliation.
This is demonstrated in Parexel Int’l LLC. In this case the NLRB majority agreed that Parexel International did not terminate the employment of Theresa Neuschafer for protected concerted activities under Section 7 of the National Labor Relations Act (NLRA). (Section 7 of the NLRA expressly prohibits an employer from retaliating against an employee for engaging in protected concerted activities.)
Generally, employees have received protection under the NLRA when they were retaliated against for internally criticizing a term or condition of their employment to their coworkers or a member of management.
The employee in this case was found to have discussed alleged pay raises and purported preferential treatment towards South Africans by the management of Parexel, Int’l (Neuschafer was not South African). The NLRB concluded that the company wanted to prevent Neuschafer from engaging in such discussions with her coworkers in the future. Such action, according to the NLRB’s majority, served as an unlawful preemptive strike against protected concerted activity.
The NLRB reasoned that because an employer violates the NLRA by threatening to terminate an employee in order to prevent her from exercising Section 7 rights, it follows that an employer similarly violates the law by terminating the employee in order to be certain that she does not exercise her rights in the future. In so finding, the NLRB majority expanded the theories on which the agency may hold employers liable, stating that an employer violates the NLRA when it fires an employee “to be certain that she does not exercise her Section 7 rights.”
The NLRB’s decision in Parexel is noteworthy on two fronts. First, it sets forth what is arguably a new theory of liability under the NLRA. Under the preemptive strike theory of liability, virtually any adverse employment action could be the subject of a Section 7 violation. Second, the preemptive strike theory of liability was not advanced by the NLRB’s general counsel at the underlying administrative hearing, but nonetheless prevailed.