Publications: Split board finds pre-emptive discharge unlawful

Parexel International LLC, 190 LRRM 1034 (Jan. 28, 2011). Needless to say, the board’s adoption of this so-called “pre-emptive strike” theory for protected concerted activity has sent shivers down the spines of employers and their attorneys.

Here ’s what happened. Parexel International LLC in Baltimore performs research studies for pharmaceutical companies. It employed a number of people from South Africa.

In July 2006, licensed practical nurse Theresa Neuschafer, who is not South African, engaged in a conversation with several of her Praexel co-workers, including John Van der Merwe, who i South African. Van der Merwe had quit Parexel in June 2006 but had been rehired recently. Neuschafer asked Van der Merwe whether he had received a raise upon his rehire and he falsely replied that he had. Van der Merwe further stated that his South African wife, who also quit Parexel, would be returning with a raise and implied that Parexel’s Manager of Clinical Operations Liz Jones, also a South African, was “looking after” or favoring the South Africans at the company.

Neuschafer told her immediate supervisor about her conversation with Van der Merwe and commented that the entire unit should resign and then return with a raise. The supervisor reported Neuschafer’s remarks to Jones.

A few days later, Jones and a company human resources official met with Neuschafer, indicating that they were concerned about employee “rumors.” Neuschafer again recounted her discussion with Van der Merwe and claimed that Parexel was paying South Africans higher wages and would continue to favor the South Africans. Jones asked Neuschafer if she had related the Van der Merwe conversation to anyone other than her supervisor and she replied that she had not. A week later, Parexel fired Neuschafer.

Neuschafer went to the NLRB. Neuschafer’s case was tried before a board administrative law judge (ALJ) on the theory that Neuschafer engaged in a protected, concerted activity when she discussed wages and her perception of wage favoritism with Van der Merwe and later her supervisor. According to the board ’s general counsel, who prosecuted the case for Neuschafer, Parexel then violated the act when it fired Neuschafer for these conversations.

After hearing testimony, the ALJ expressly found that (1) Parexel would not have fired Neuschafer but for her conversations with Van der Merwe and her supervisor; (2) those conversations concerned wages and alleged wage discrimination; and (3) Parexel fired Neuschafer specifically to prevent her from discussing wages and alleged wage discrimination with other co-workers. However, while characterizing Neuschafer’s termination a “pre-emptive strike,” the ALJ dismissed Neuschafer’s claim, ruling that Neuschafer’s conversations with Van der Merwe and the supervisor were not concerted activity and, therefore, not protected by the NLRA.

A divided, three-member board panel reversed with two Obama appointees ruling for Neuschafer. Presuming that Neuschafer had not yet engaged in any statutorily protected concerted activity at the time she was fired, the board majority nevertheless ruled that employers violate the act “by simply terminating the employee in order to be certain that she does not exercise her” rights under the act. Although the act itself says nothing about “pre-emptive strikes , ” according to the board majority, “the suppression of future protected activity is exactly what lies at the heart of most unlawful retaliation against past protected activity.”

Thus, it supposedly follows, pre-emptive firings also are illegal, the board ruled. The board ordered Neuschafer reinstated with full back pay.

One board member dissented. He argued that the general counsel tried the case solely on the presumption that Neuschafer’s conversations with Van der Merwe and the supervisor themselves had been protected concerted activity under the act. In his view, it violated Parexel’s due process rights to hold the company liable on a theory, “pre-emptive strike , ” that it did not have an opportunity to defend at trial. In a footnote, the dissenter, commenting on the “pre-emptive strike” theory itself, noted that finding a “motivational discharge violation in the absence of any actual concerted activity is unprecedented … ”

Parexel has filed a petition for review in the U.S. Circuit Court of Appeals for the District of Columbia.

Reprinted with the permission of The Law Bulletin Publishing Company.