Labor & Employment Law

Employees who wrote critical letter engaged in protected activity and his termination was an unfair labor practice

By Harvey Randall, Esq.

Employees who wrote critical letter engaged in protected activity and his termination was an unfair labor practice
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Five Star v. NLRB, ___F.3d___(1st Cir. March 31,2008)is an important decision which presents an excellent primer about what constitutes protected concerted activity under Section 7. Unionized employees of a private bus company under contract to a school district wrote critical letters to the school district in an effort to dissuade it from awarding a contract to another company. The Board held that the employees engaged in protected concerted activity. On appeal, the employer argued that the activity was not protected and was disloyal. The court rejected this argument, reasoning:

It is long established that concerted activity engaged in for sanctioned purposes may lose the veil of protection afforded it by the Act if carried out through abusive means. NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers (Jefferson Standard), 346 U.S. 464, 477-78 (1953) ("Even if the attack were to be treated . . . as a concerted activity . . . within the scope of those mentioned in § 7, the means used by the technicians in conducting the attack have deprived the attackers of the protection of that section."); NLRB v. Circle Bindery, Inc., 536 F.2d 447, 453 (1st Cir. 1976) ("We recognize that even activity otherwise protected under section 7 ceases to be protected if conducted in an excessive or indefensible manner."). Where concerted activity entails communications with a third party, such as here the District, such activity is protected if it meets a two-part test: (1) the communication indicates to the third party that it is related to an ongoing dispute between an employer and employees; and (2) the communication itself is not "so disloyal, reckless or maliciously untrue as to lose the Act's protection." In re Am. Golf Corp. (Mountain Shadows), 330 N.L.R.B. 1238, 1240 (2000), enforced sub nom. Jensen v. NLRB, 86 Fed. Appx. 305 (9th Cir. 2004); accord Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006). The NRLB found this two-part test to be satisfied, and our review finds this holding to be adequately supported by the record.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on April 24, 2008 (boomark / email).