Schorr and Associates' Case of the Week ending February 19, 2016
By Arykah Trabosh
MCPc Inc. v. NLRB, 2016 U.S. App. LEXIS 2457 (3d Cir. Feb. 12, 2016)
This week the Third Circuit Court of Appeals clearly defined “concerted activity” to include complaints made by a single employee about shared working conditions even though the employee had not organized with other employees prior to voicing his concerns to management.
MCPc, Inc. provides computer consulting and other technology services, including designing and implementing complex telephony systems for client companies. MCPc was experiencing a company-wide shortage of engineers, resulting in unduly heavy workloads for its employees. Jason Galanter was an engineer in MCPc’s Pittsburgh office. Domenic Del Balso, MCPc’s director of engineering visited the Pittsburgh office once or twice a month and regularly took the Pittsburgh staff out on “team building” lunches.
At one such lunch, Galanter took the opportunity to discuss his concerns regarding the work environment. In attendance were Del Balso, Galanter and three other employees from the Pittsburgh office. During the lunch Galanter expressed how busy his staff was due to the engineer shortage and urged Del Balso to hire more engineers to alleviate the employees’ unduly heavy workloads. Galanter also stated that MCPc could have hired several engineers with the $400,000 salary MCPc was paying a recently hired executive.
A week later, MCPc had a meeting with Galanter to discuss how he had obtained the confidential salary information he mentioned at the lunch with Del Balso. Galanter was inconsistent and not forthright with how he obtained the salary information. MCPc terminated Galanter for his inconsistent statements and because he had divulged confidential salary information.
The National Labor Relations Board (“Board”) brought a complaint alleging that MCPc had violated the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by discharging Galanter for engaging in protected concerted activity under § 7 of the Act. Following a hearing, the ALJ concluded that MCPc’s discharge of Galanter constituted an unfair labor practice and recommended that he be reinstated with back pay. The Board affirmed the ALJ’s holding. MCPc filed a petition for review and the Board cross-applied for enforcement of its order.
The Third Circuit held that Galanter’s had engaged in concerted activity. The Court found that Galanter complained about shared work conditions to a member of MCPc’s management, in the presence of other employees a “team building” lunch. The Court stated that it was not necessary for Galanter to have organized with employees before or after the lunch at which he voiced his complaints. The Court stated that the benchmark for determining whether an employee had engaged in concerted activity is the intent to induce or effect group action in furtherance of group interests.
After determining that Galanter had engaged in protected activity, the Court next addressed whether the protected conduct formed the basis for his termination. MCPc alleged that it did not terminate Galanter for his protected activity but because of its belief that he had accessed confidential salary information prior to the lunch meeting and because of his dishonesty when MCPc questioned how he obtained said information. The Court relied on the “mixed motive” discharge test set forth in Wright Line, 251 N.L.R.B. 1083 (1980). Under the Wright Line test, once General Counsel for the Board sets forth a prima facie showing that the employee’s protected activity was a motivating factor in the employer’s decision to take adverse action, the burden then shifts to the employer to demonstrate that it would have taken the adverse action even in the absence of the protected activity. To prevail on a Wright Line defense, MCPc must show that it has applied its disciplinary rules regarding the conduct at issue consistently and evenly. While the Court held that Galanter had engaged in protected concerted activity, it remanded for the Board analyze MCPc’s actions under the Wright Line test.
This case can provide a supplement to CEPA. While CEPA only covers unlawful or fraudulent activities, this holding covers any employee who complains about negative working conditions that affect all or most employees in an attempt to have those conditions alleviated. Employment practitioners should consider this case in situations where an employee's complaints may not fall in whole or in part under CEPA.
This is an important Circuit Court case that provides protection for employees who may not otherwise have explicit protection under State law.
Attorneys for MCPc, Inc.: Dean F. Falavolito, Margolis Edelstein.
Attorneys or the National Labor Relations Board: Julie B. Broido, Linda Dreeben, Gregory P. Lauro, National Labor Relations Board.
Circuit Judges: Fuentes, Fisher, and Krause.