New Nip in the Bud: Does the Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?

In this essay I revisit the classic debate concerning when worker activity is sufficiently “concerted” to be covered by the National Labor Relations Act, a statute covering certain private sector protected “concerted” activity by workers. When workers are obviously engaged in concerted “labor” activity — classically activity like striking, picketing, or even just complaining about working conditions — they are generally protected against employer reprisal for doing so. Over the last few decades there has been disagreement about the definition and limits of “concert.” My renewed interest in this dormant but not dead subject was piqued by the “Obama Board’s” recent decision in Parexel International, 356 NLRB No. 82 (2011), a case in which an employer fired a worker who had not engaged in concerted activity but whom it suspected (without any basis) would engage in concerted activity. The ALJ hearing the ensuing administrative adjudication rejected the Government’s “nip in the bud” theory of NLRA violation because, quite frankly, there was no precedent supporting it. The NLRB reversed the judge and found a violation, but on grounds I think were infirm. This essay defends the outcome of the decision (which was not appealed to the courts) but on a different rationale than the one proffered by the NLRB. I reassess Parexel, relying heavily on Professor Charles Morris’s expansive view of the interplay of Sections 7 and 8(a)(1) of the NLRA: The Act protects the right of workers to engage in concerted activity for other mutual aid or protection, which can mean more, depending on the circumstances, than merely protecting workers against reprisals after they have actually engaged in such concerted activity. Even more broadly, I argue — in response to those who would have employment law function as labor law – that the true value of expanding the reach of Section 7’s definition of concerted activity is to increase the likelihood of bringing employment law to labor law, the only realistic home of a collective work law ethic.