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Law firm employees who shared complaints with co-workers didn’t engage in “concerted” activity and weren’t illegally fired, NLRB administrative law judges decided in two cases June 30 ( McCarthy Law PLC , 2017 BL 227283, NLRB ALJ, Case 28-CA-175313, 6/30/17 and Trey Harlin, P.C. , 2017 BL 327284, NLRB ALJ, Case 16-CA-171972, 6/30/17 ).
The cases illustrate that employees claiming protection under the National Labor Relations Act must show that their discussions about work-related matters were concerted in character and designed to improve wages or working conditions, not merely that they involved two or more employees.
In an Arizona case ( McCarthy Law PLC), a paralegal was fired after she commented on a computer survey that senior officials weren’t sufficiently engaged in law firm management. The ALJ found the comment didn’t arise out of any group discussion or employee activity and wasn’t protected by the NLRA.
In the second case ( Trey Harlin P.C.), an ALJ acknowledged that the National Labor Relations Board has found that employee discussions about sexual harassment can be concerted in nature, but she found a Texas legal assistant’s recounting allegedly inappropriate comments to her co-workers wasn’t concerted. The employee never asked for help or suggested any group protest action, the ALJ found.
In McCarthy, employee Kevin Hardin used McCarthy Law PLC’s survey portal to file an anonymous comment that a law firm partner was “rarely here” and didn’t communicate with employees. Hardin commented that another senior manager rarely came to the office, while he wasn’t sure what a third official did.
Hardin acknowledged that he didn’t discuss the comment with any other employees before posting it, but he claimed it coincided with a “theme” he had discussed with other employees.
The NLRA protects the right of employees to engage in concerted activity for their mutual aid or protection. The NLRB’s general counsel alleged that Hardin’s comment was a logical outgrowth of his conversations with other employees, making it concerted. The employer believed Hardin was responsible for the comment, and the NLRB’s general counsel alleged the law firm illegally fired the paralegal for NLRA-protected activity. McCarthy claimed it discharged Hardin for accepting outside work for a mortgage company that violated his earlier commitment not to engage in moonlighting.
There was no evidence that Hardin’s comment was an expression of group concerns and “thus no evidence of concertedness,” ALJ Mary Miller Cracraft said, recommending the discharge allegation be dismissed.
In the Harlin case, ALJ Sharon Levinson Steckler also rejected the general counsel’s argument that an employee engaged in concerted activity that was protected by the NLRA.
Legal assistant April McCormick testified that she received several sexually suggestive text messages from a Trey Harlin P.C. partner in 2011. She showed the messages to two other employees and, according to the co-workers, boasted to them in 2016 that she could never be fired because she could use the text messages as evidence of sexual harassment. The law firm, which learned of the boast, fired McCormick based on a number of allegations of poor performance.
The ALJ said the board has held that seeking the aid of co-workers to combat sexual harassment can be concerted activity under the NLRA, but maintaining “that you, as an individual, cannot be fired, is not.”
Steckler recommended the board dismiss the unfair labor practice allegation.
To contact the reporter on this story: Lawrence E. Dubé in Washington at email@example.com
Text of the McCarthy Law decision is available at http://www.bloomberglaw.com/public/document/NLRB_ALJ_Decision_McCarthy_Law_PLC_No_CA175313_2017_BL_227283?doc_id=XJSTNHPC. The Trey Harlin decision is available at http://www.bloomberglaw.com/public/document/NLRB_ALJ_Decision_Trey_Harlin_PC_No_CA171972_2017_BL_227284?doc_id=XJSTNHHC.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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