The staff at an urgent care center sent an anonymous letter to the owner/doctor, asking him to reconsider a plan to immediately cut wages by 10% and suggesting alternate ways to save money. Within a month, two employees who wrote and edited the letter were fired. The Board found the employees’ activity was protected and ordered full backpay and offers of reinstatement.
When the owner of Northfield Urgent Care, Inc., Dr. Kevin B., announced to his staff of 10 that he would immediately cut wages by 10% to save the business from bankruptcy, employees were stunned and unhappy. After several conversations, they decided to write a joint, anonymous letter to express staff concerns and offer alternatives for saving money, such as eliminating the employer match to the 401K fund. The letter was written by the center’s physician’s assistant, Jennifer G., and edited by its radiation technologist, Michael B. It was then left unsigned on the doctor’s desk.
During the next few weeks, the owner met with individual employees in an attempt to learn who wrote the letter, and the atmosphere became increasingly tense. He accused several employees of whispering and cliquish behavior, and repeatedly complained of “toxic talk” and negativity”. Three weeks after the letter was delivered, Michael B. was demoted. He was fired three days later. The owner then learned by examining Michael B.’s work emails that Jennifer G. had written the letter. The next day, she was fired as well.
Jennifer G. filed a charge with the National Labor Relations Board Regional Office in Minneapolis. Following an investigation, the Regional Director issued a complaint alleging the owner’s actions were unlawful. A trial was held before Administrative Law Judge Paul Buxbaum, who agreed.
In his decision, Judge Buxbaum expanded on the concept of protected concerted activity, mentioning other cases that involved employee groups as disparate as hair cutters and financial advisors. “The Board’s recognition of the Act’s protection of employees’ activities that do not involve labor unions was explicitly endorsed by the Supreme Court in NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962),” he wrote. “In that case, employees of a foundry were not represented by any union. Nevertheless, they chose to walk off the job as a group in order to protest the lack of heat in the plant during a wintertime cold spell. The employer fired them for violating a company rule that prohibited unauthorized departures from work. Management argued that the employees’ concerns were merely “gripes”, and that it was already working to have the furnace repaired at the time of the walkout. Both the Board and the Supreme Court ordered the reinstatement of the discharged employees.”
Judge Buxbaum found that the activity did not lose protection because it was not defamatory or malicious; in fact, he described the letter as “both civil and respectful in its language and tone.” He therefore found the actions unlawful. He ordered the employer to stop the unlawful activity and offer reinstatement and full backpay to both employees.
The clinic owner appealed Judge Buxbaum’s decision to the Board in Washington D.C. On March 15, 2012, a panel of three members considered the record and unanimously decided to uphold the judge’s decision in full.