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Ninth Circuit Revisits "Protected Concerted Activity" Under NLRA

July 1, 1995

It is well known that the National Labor Relations Act (the "NLRA") protects the right of employees to engage in union activity. The scope of the NLRA's protection, however, is far broader; the statute makes it an unfair labor practice for an employer to discipline or discharge employees for engaging in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." As the language of the statute suggests, purely individual conduct of a single employee is not subject to the NLRA's protection; rather, the NLRA is concerned only with "concerted" activity - employee activity undertaken together by two or more employees or by one employee on behalf of others. Further, not all "concerted" activity is necessarily protected by the NLRA. Concerted employee activity is deemed protected when it can reasonably be seen as affecting the terms or conditions of employment. In general, the concept of "protected concerted activity" has been broadly interpreted by both the National Labor Relations Board (the "NLRB") and federal courts throughout the years. Recently, the U.S. Court of Appeals for the Ninth Circuit in San Francisco issued two particularly noteworthy decisions finding certain employee conduct to be within the ambit of protected concerted activity.

At issue in the first case was whether an employer violated the NLRA by discharging an employee for circulating a letter protesting the promotion of an unpopular co-worker to a supervisory position. Atlantic-Pacific Construction Company v. NLRB, 52 F.3d 260 (9th Cir. 1995). At the outset, the Court reiterated the rule that, although the NLRA protects "employee protest regarding the selection or termination of a supervisor who has an impact on employee working conditions ..., where the purpose of concerted activity is not related to working conditions, as where personal animus motivates employee protest over the selection of a manager, the protest is not protected."

The employer in Atlantic-Pacific had contended that the employee's letter was merely the result of a personal grudge wholly unrelated to working conditions, and therefore was not subject to statutory protection. The Court was unpersuaded, however, despite the evidence of a long-standing conflict between the terminated employee and the new supervisor, as well as the fact that the letter was written in general terms, did not expressly address any particular working conditions, and merely alleged that the new supervisor was "an unreasonable and difficult person to work with." Although acknowledging that the letter did not overtly address "legitimate protected concerns," the Court concluded that "specificity and articulation are not the touchstone of protected concerted activity." Rather, the "nexus between the activity and working conditions must be gleaned from the totality of the circumstances."

Applying this standard, the Court accorded determinative weight to the fact that the protest over the new supervisor originated with the very employees over whom the new supervisor would exercise her authority. The terminated employee drafted, circulated and submitted the letter only after having discussed the promotion with several other employees, who articulated their concerns that the new supervisor would impact their working conditions by demanding employees to work faster and by altering existing work hours. Moreover, the new supervisor would, in fact, have substantial authority over the employees' work, hours, and continued employment.

Based on these facts, the Court concluded that the terminated employee's letter to management criticizing the selection of a new supervisor was clearly related to working conditions, and therefore constituted protected concerted activity under the NLRA. As a result, the company's termination of the employee for his role in circulating the letter was an unfair labor practice.

In the second case, the Court ruled that an employer unlawfully discharged four employees after they refused to obey their supervisor's directive to work an extra hour. NLRB v. Mike Yurosek & Son, 53 F.3d 261 (9th Cir. 1995). Prior to the incident which gave rise to their terminations, the employees were notified by the warehouse manager that their hours were being reduced. In response, some employees complained that the reduced hours would not allow them enough time to finish their work. The warehouse manager replied, "that's the way it's going to be ... you are going to punch out ... exactly at the time that I tell you." A few weeks later, after implementation of the new work schedule, a foreman approached the four employees individually and instructed each to work an additional hour. All four employees refused, claiming they were directed by the warehouse manager to adhere to the new schedule. The next morning each employee was individually questioned, and then terminated for insubordination.

Thereafter, the NLRB ruled that the company committed an unfair labor practice when it discharged its employees for engaging in protected concerted activity. On appeal, the Ninth Circuit upheld the NLRB's determination, rejecting the employer's contention that the employees' refusal to remain at work was neither protected nor concerted.

Although the employer argued that the conduct was not concerted because the employees did not discuss a common plan of action among themselves or expressly communicate a common cause to their employer, the Court was not persuaded. The Court reasoned that the employees' actions were concerted because the four employees acted as a group and were treated by their employer as a group; they implicitly supported each other by leaving the workplace together, and, "upon questioning, each gave the same reason for refusing to work." Merely because each employee was separately questioned and terminated, "does not mean that each man's conduct was isolated from the other." Viewed as a whole, the employees' refusal to work was clearly concerted in nature.

Additionally, the Court observed that even if each employee's refusal to work the overtime constituted individual activity, the refusal was still concerted in that the refusal "was a logical outgrowth of their prior concerted protestations of the reduction in work hours when [the warehouse manager] originally announced the schedule change." In other words, the employees' joint objections to the new schedule constituted prior concerted activity that not only indicated dissatisfaction with the way their work hours were being manipulated, but also gave rise to their subsequent refusal to work.

The employer also argued that even if the conduct in question was concerted, it was still not protected, based upon the employees' testimony that they refused to remain at work because they were adhering to the new schedule, and not because they were "protesting" anything. The Court disagreed. "An employee's subjective characterization of his own actions," the Court ruled, "is not determinative in the [NLRB's] objective analysis of whether that employee was engaged in protected activity." In fact, the employees' refusal to work an extra hour "could objectively be viewed as a protest over management's inconsistent manipulation of their work hours." In sum, the employees' refusal to remain at work an additional hour was both protected and concerted, thereby making their terminations an unfair labor practice.

These recent decisions make clear that the scope of protected employee conduct under the NLRA is indeed broad. Accordingly, any employer, unionized or not, contemplating an adverse personnel action based on employee activities which conceivably could be construed as a protest over working conditions should proceed with caution.