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Claims of Protected Concerted Activity

By Kevin C. McCormick

Early last year, the National Labor Relations Board (NLRB) reversed the findings of an ALJ and found that a Maryland research firm violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by firing an employee as a “preemptive strike” to prevent the employee from discussing certain wage complaints ' even though the ALJ had found, as fact, that the employee had not actually engaged in protected concerted activity at the time of her discharge. Parexel International, LLC, and Theresa Neuschafer, Case No. 5-CA-33245, NLRB decided Jan. 28, 2011.

Under the NLRA, employees, even those not covered by collective bargaining agreements, have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Until this decision, it was generally believed that in order to support an unfair labor practice charge, the employee needed to engage in concerted activity, i.e., that the employee consulted with other employees about the issue and then the employer disciplined or discharged the employee for engaging in that concerted activity.

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