Second Circuit Affirms NLRB Ruling That Discipline Based on Employee Objections to Policy Changes Was Unlawful

The National Labor Relations Act (the “NLRA”) protects the right of employees to engage in union activity. The scope of NLRA’s protections are far broader, however; Section 7 of the statute makes it an unfair labor practice for an employer to discriminate against an employee who engages in “concerted activities for the purpose of . . . other mutual aid and protection.” As the language of Section 7 makes clear, purely individual conduct is not protected by the NLRA. The law protects only “concerted” activity — actions undertaken by two or more employees or by a single employee acting on behalf of others. However, a recent decision by the U.S. Court of Appeals for the Second Circuit in New York illustrates that the concept of “concerted” activity is broad indeed. NLRB v. Caval Tool Division, No. 00-4203 (2d Cir., August 21, 2001).

In the Caval case, the employer called a series of employee meetings at which its president, Pace, expressed his dissatisfaction with employee productivity and announced a new and more restrictive break policy. An employee attending one such meeting, Baldessari, began to question Pace in an aggressive manner about the policy. Baldessari suggested that the new policy should apply not only to production employees but to office employees as well, and stated that “it would be nice if things were fair for a change.” Baldessari also asserted that the poor productivity was the fault of management, not the employees, and complained about the poor quality of the supervisors, suggesting that all but one supervisor should be discharged. As a result of her conduct at the meeting, Baldessari was suspended for three weeks and, after returning to work, was placed on probation. She subsequently filed an unfair labor practice charge with the National Labor Relations Board (the “NLRB”), asserting that her conduct constituted concerted activity protected under Section 7 of the NLRA, and that the discipline she received was therefore unlawful. The NLRB sustained the charge, ruling that the suspension and probation constituted an unfair labor practice.

On appeal, the Second Circuit agreed with the NLRB. Although Baldessari acted alone, the Court reasoned, her conduct was “concerted” because her comments were “directed at an announced change in the terms and conditions of employment, the new break policy.” In reaching this conclusion, the Court relied upon a series of earlier NLRB decisions in which what appeared to be individual activity — a single employee’s protest at a group meeting of employees — was found to be “concerted” because it was initiated “with the object of initiating or inducing . . . group action.” The Court found that the NLRB properly considered Baldessari’s conduct to be “concerted” on the same basis.

The Caval decision serves as a reminder that even union-free employers must be mindful of the protections and prohibitions of the NLRA. Undeniably, employers have the right to prohibit employee conduct that is insubordinate or otherwise disruptive of the operation of the business. However, in view of the breadth of the concept of protected concerted activity under the NLRA, an employer’s attempt to limit what appears to be an individual protest over working conditions may be subject to challenge as an unfair labor practice. Accordingly, an employer considering the imposition of discipline in those circumstances must proceed with caution.