Termination - the Capital Punishment of Employment


On July 14, 2016, the National Labor Relations Board found that an employee, Juan Marana, who was told he was fired and told the same day that he wasn’t fired, was unlawfully discharged in violation of the National Labor Relations Act ("NLRA").  Marana was not part of a union and was not seeking to become part of a union. 

Marana worked for a paving company and, along with several other members of his paving crew, complained to the owner of the company, Robert Bates, about a supervisor who had a habit of yelling, cursing and using racial slurs toward the crew.  Marana and his coworkers also complained about being asked to pave over damp ground, less than optimal conditions. 

Bates convened a meeting to respond to the employees’ complaints of poor working conditions and spent a portion of the meeting criticizing the performance of Marana and another employee.  Marana said all problems at the job site were due to the supervisor’s aggressive and inappropriate attitude.  In response, Bates fired Marana, telling him to “Get the f*** out of here.” After the meeting, Bates told Marana he wasn’t fired, and Marana continued working at the company.

The Board found that Marana understood he was fired for a short time and, even though Marana didn’t suffer any losses as a result of his hour or so of unemployment, he was still unlawfully fired for engaging in concerted activity under the NLRA.  Calling terminations the “capital punishment of employment,” the Board said that the employer’s actions sent a message that it was willing to take “extreme action” and that Marana, or some other employee, would likely understand that the employer likely wouldn’t change its mind the next time the employee engaged in protected activity.  Bates Paving & Sealing, Inc., 364 NLRB No. 46 (2016).

What is concerted activity?

Section 7 of the NLRA protects employees who act together in an effort to improve pay and/or working conditions.  You don’t have to be in a union to be protected by this law, and if you’re fired, suspended, or otherwise punished for taking part in protected group activity, you can seek relief from the National Labor Relations Board.

Concerted activity generally requires two or more employees to act together, but a single employee can engage in concerted activity if he or she is acting on behalf of coworkers or if he or she involves coworkers before acting (e.g., sends out a message, talks with coworkers, posts on social media, etc.).

Personal complaints, gripes, and vendettas aren’t protected by the NLRA.  So if you’re posting complaints about your boss on Facebook, that’s probably not protected activity under Section 7.  However, if you’re posting on Facebook about how your employer should increase wages or change the place you work in some (positive) way, and your coworkers respond, your actions could be protected by the NLRA.  The same kind of activity can happen elsewhere (around the water cooler, in the break room, etc.) and still be protected.

Call us if you’ve got questions about your rights under the National Labor Relations Act.