Beware new NLRB beartrap

The National Labor Relations Board (NLRB) recently expanded the reach of claims based on the protected concerted activity of employees. This claim applies to all Texas employers, regardless of their union status. It prevents employers from retaliating against employees who protest the terms and conditions of employment. When I was a new lawyer at the NLRB, my first trial assignment was such a case. Let’s do a before/after comparison.

Classic claim

Here was my case. An employee—let’s call him Bob (well, that was his name)—worked as a loader for a large trucking company. He and his coworkers believed their manager was unfair to them, insisted on them exceeding their production quotas, and was abusive in these efforts.

So, Bob drafted a letter to the company making these claims and phrased it in the plural (“we”). He and his coworkers signed it. But worried that the other employees would get into trouble, he submitted the letter with only his signature, keeping its plural verbiage.

Upon receipt, the company investigated, talking to other employees who disavowed the letter’s contents (except for one, and that was outcome determinative). The company met with Bob, telling him of the investigations results (except conveniently leaving out this one employee).