Employee Warning Coworker of Impending Termination is Protected Concerted Activity

A non-supervisory parts inspector noticed that a fellow employee, a machine operator, had not shown up to work recently. The inspector asked the plant manager about the machine operator, and the plant manager responded that the machine operator “doesn’t work here anymore.” The inspector then used his cell phone to call the operator, who explained that he had been sick. The inspector informed the operator that he did not think he had a job with the Company anymore. The operator immediately called the Company and told the plant manager that he was upset to learn about his firing from another employee. Based on this report, the Company interviewed the inspector and then fired him for “misconduct.” The inspector filed an unfair labor practice charge with the National Labor Relations Board over his termination.

The administrative law judge (ALJ) explained that “the Board repeatedly has held that an employee’s warning to another employee that the latter’s job is at risk constitutes protected, concerted activity.” Accordingly, the ALJ found that the call from the inspector to the operator was protected concerted activity under the National Labor Relations Act. The ALJ ordered the inspector be reinstated and made whole for any loss of pay or benefits caused by his termination.

This case demonstrates the wide range of activity that the NLRA protects as concerted activity. Of course, this case would never have seen the light of day had the plant manager not prematurely shared an employment decision with the inspector before notifying the operator of his termination. As such, this case is a good reminder of not only the lengths the Board will go to protect activity but also that loose lips sink ships and supervisors should not universally discuss personnel matters.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.