PAREXEL INTERNATIONAL, LLC, 356 NLRB No. 82 (2011)

The animation is based loosely on the facts of Parexel International.  Some changes were necessary to make it concise. 

Another interesting PCA case.  Here is my summary (I skip a large procedural issue):

South African employees seemed to be getting better treatment (and pay) than other employees.  One nurse talked to a South African employee about his preferable treatment and later raised the issue with her supervisor.  A manager, an HR consultant, and the nurse had a meeting to discuss the source of a rumor that South African employees were being treated better than native born Americans.  The nurse told the manager and HR consultant that she had not discussed or complained to any regular employees about the issue, but had only complained to her supervisor about it.  Some days later the employee was fired.

The General Counsel alleged that the nurse had engaged in protected, concerted activity and had been unlawfully discharged for that activity.  The judge found that the nurse had been discharged for those conversations, and that the discharge had been in part a "preemptive strike" designed to stymie similar complaints among other employees.  However, the judge found that while the nurse's complaints were of a protected nature, she had not engaged in any concerted activity.  Because the nurse had not engaged in protected concerted activity, he recommended dismissal of the allegation.

However, in a 2-1 decision, the Board reversed and ordered the reinstatement of the discharged nurse.  Whether or not the nurse had engaged in PCA, the Board ruled that a termination designed to nip-in-the-bud employee complaints about wage discrepancies was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights.  On page 4, the Board writes,

"That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. [Foot note omitted]. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act.[Foot note omitted] . What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity."


Full decision here.