We have all heard this one before in a break room, outside in a parking lot, at a bar after work: Employee A laments “My boss has really been on my back. She’s blamed me for things that went wrong that really were not my fault. I’m pretty sure she is going to fire me soon.” Employee B says “Well, all you can do is your best. You may be over-reacting a bit.” These conversations happen everyday in tens of thousands of workplaces across the country. Most managers would not think much of this type of conversation. They would be wrong. According to the NLRB, that conversation constitutes concerted activity and is protected.
But wait a doggone minute, you say. How can one construe intent to induce or prepare for group action in the interest of the employee or other employees? How does a common gripe constitute a union drive? According to the Board in its recent Sabo, Inc. decision, job security is an important term and condition of employment, and is therefore inherently concerted. While the company said it fired the employee for bad mouthing a co-worker, the employee claimed she was fired because she had communicated her fear of being fired to another employee. The Board agreed with the employee.