Johns Creek Surgery (10-CA-270348)

Case 10-CA-270348

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To be protected under Section 7 of the Act, employee conduct must be both

“concerted” and “for the purpose of . . . mutual aid or protection.”5 The manner in

which an employee’s actions are linked to those of her coworkers determines

whether the employee’s activity is concerted, with no particular combination

necessary to find the conduct protected.6 Core concerted activity is that which is

“engaged in with or on the authority of other employees,”7 and peripheral to core

group action, but also retaining protection, is individual conduct both in the form of

preliminary discussions8 and where such conduct is the logical outgrowth of earlier

collective discussions.9 It is well-established that concerted activity includes

statements by a lone employee addressing her coworkers that seek to initiate,

induce, or prepare for group action, or statements directed to management

Advice concluded an employer’s alleged threats and interrogations were narrowly

targeted toward an employee’s unprotected activities and, therefore, would not

restrain, coerce, or interfere with its employees’ Section 7 rights. In contrast, here,

the Employer’s threats and questions toward Employee 1 targeted

knowledge of

and participation in the Charging Party’s Facebook post. Even assuming the

Facebook post was not protected concerted activity, here, unlike in East Coast

Abatement, the Employer’s conduct toward Employee 1 was inextricably

intertwined with its strategy to prevent potential protected concerted activity from

occurring, and would reasonably tend to interfere with, restrain, or coerce such

activity.

5 See, e.g., Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 2 (Jan. 11, 2019).

6 Meyers Industries, 281 NLRB 882, 884–85 (1986) (Meyers II) (citing NLRB v. City

Disposal Systems, 465 U.S. 822, 831 (1984)), aff’d sub nom. Prill v. NLRB, 835 F.2d

1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988)

d would reasonably tend to interfere with, restrain, or coerce such

activity.

5 See, e.g., Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 2 (Jan. 11, 2019).

6 Meyers Industries, 281 NLRB 882, 884–85 (1986) (Meyers II) (citing NLRB v. City

Disposal Systems, 465 U.S. 822, 831 (1984)), aff’d sub nom. Prill v. NLRB, 835 F.2d

1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

7 Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill

v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied, 474 U.S. 948 (1985); Meyers

Industries (Meyers II), 281 NLRB at 887.

8 See, e.g., Fresh & Easy Neighborhood Market, 361 NLRB 151, 153 (2014) (“The

requirement that, to be concerted, activity must be engaged in with the object of

initiating or inducing group action does not disqualify merely preliminary

discussion from protection under Section 7” and “almost any concerted activity for

mutual aid or protection has to start with some kind of communication between

individuals”).

9 See, e.g., Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038–39 (1992) (individuals’

uncoordinated refusals to work overtime were logical outgrowth of earlier concerted

protest over hour reductions), enforced, 53 F.3d 261 (9th Cir. 1995).

(b) (6), (b)

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communicating a truly group complaint.10 Protected preliminary communications to

coworkers include statements made to elicit support from fellow likeminded

coworkers for a personally held view about a working condition.11 Protection will

even attach to communications between employees that do not directly call for

group action if they involve “inherently concerted” discussions about vital categories

of workplace life such as wages, scheduling, or job security.12

Based on these principles, we conclude the Charging Party’s Facebook post

constituted protected concerted activity, as it had the object of initiating, inducing,

or preparing for group action over the quality of employees’ supervision and

employee

tion if they involve “inherently concerted” discussions about vital categories

of workplace life such as wages, scheduling, or job security.12

Based on these principles, we conclude the Charging Party’s Facebook post

constituted protected concerted activity, as it had the object of initiating, inducing,

or preparing for group action over the quality of employees’ supervision and

employee attrition.13 The post, as written, objectively sought to elicit support from

10 See Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 3 (quoting Meyers II,

281 NLRB at 887); see, e.g., Timekeeping Systems, 323 NLRB 244, 244, 248 (1997)

(employee’s unilateral company-wide email to coworkers in response to employer’s

email about vacation plan changes constituted concerted activity).

11 See, e.g., Morton International, 315 NLRB 564, 566 (1994) (finding that employee

engaged in concerted activity by writing contradictory statements on memo that

proposed smoke-free workplace, and posting memo in lunchroom, because the

conduct induced support from fellow smokers); Whittaker Corp., 289 NLRB 933, 933

(1988) (“the activity of a single employee in enlisting the support of his fellow

employees for their mutual aid and protection is as much ‘concerted activity’ as is

ordinary group activity” (quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d

1357, 1365 (4th Cir. 1969))).

12 Meyers I, 268 NLRB at 494 (even a statement that “in its inception involves only

a speaker and a listener” may be protected because it is “an indispensable

preliminary step to employee self-organization” (quoting Root-Carlin, Inc., 92 NLRB

1313, 1314 (1951))). See also Alternative Energy Applications, 361 NLRB 1203, 1206

n.10 (2014) (stating “employee wage discussions are ‘inherently concerted,’ and as

such are protected, regardless of whether they are engaged in with the express

object of inducing group action”); Aroostook Cty

“an indispensable

preliminary step to employee self-organization” (quoting Root-Carlin, Inc., 92 NLRB

1313, 1314 (1951))). See also Alternative Energy Applications, 361 NLRB 1203, 1206

n.10 (2014) (stating “employee wage discussions are ‘inherently concerted,’ and as

such are protected, regardless of whether they are engaged in with the express

object of inducing group action”); Aroostook Cty. Reg’l Ophthalmology Ctr., 317

NLRB 218, 220 (1995) (finding that employee discussions regarding wages and

work schedules are inherently concerted because they are both vital elements of

employment), enforcement denied in part on other grounds, 81 F.3d 209 (D.C. Cir.

1996); Hoodview Vending Co., 359 NLRB 355, 357 (2012) (stating “employee

conversations about job security are inherently concerted”), incorporated by

reference, 362 NLRB 690, 690 n.1 (2015).

13 Our analysis here focuses on whether the Charging Party’s Facebook post and the

comment it elicited from Employee 1 constituted concerted activity. The Facebook

post clearly satisfied the “mutual aid or protection” requirement because the

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coworkers and other employees—who were Facebook friends and would therefore

see the post—regarding the

perceived poor management

practices that would lead to employee attrition.14 This is clearly a subject

potentially affecting all the employees. Indeed, Employee 1 responded to the

Charging Party’s post by commenting: “YESS. FREAKIN YESSSSSS!![sic],” another

employee posted a supportive comment that was deleted before the Charging Party

could screenshot it, and Employee 2 responded with an emoticon of a face with no

mouth. Thus, at least two of these employees’ responses indicated their support for

the Charging Party’s message that bad management practices lead to a loss of

employee morale and employee attrition

FREAKIN YESSSSSS!![sic],” another

employee posted a supportive comment that was deleted before the Charging Party

could screenshot it, and Employee 2 responded with an emoticon of a face with no

mouth. Thus, at least two of these employees’ responses indicated their support for

the Charging Party’s message that bad management practices lead to a loss of

employee morale and employee attrition. Regardless of the responses, such

discussions represent the type of inchoate activity that often precedes group action

for the purpose of improving working conditions. They are covered by Section 7

because “almost any concerted activity for mutual aid or protection has to start with

some kind of communication between individuals,” and to deny protection “because

of lack of fruition” would nullify bedrock Section 7 rights.15 Moreover, the Charging

Party’s post and the comments it elicited were a continuation of the Charging

Party’s earlier conversations with numerous other employees about the quality of

the Employer’s supervision, including

conversation with Employee 2 about

decision to leave the Employer.16

Charging Party was seeking to address the quality of employees’ supervision and

employee attrition. See Trompler, Inc., 335 NLRB 478, 479 (2001) (Section 7

protects employees’ concerted complaints regarding their supervisors where the

supervisor’s capability “has a direct impact on the employees’ own job interests and

on their performance of the work they are hired to do” (internal quotation marks

and citations omitted)), enforced, 338 F.3d 747 (7th Cir. 2003). See also Rhee Bros.,

Inc., 343 NLRB 695, 695 n.3 (2004); Astro Tool & Die Corp., 320 NLRB 1157, 1161–

62 (1996).

14 It is of no matter that the Charging Party states

did not make the post to

garner support from

coworkers regarding the Practice Administrator. The

Board applies an objective standard to determine whether employee activity is

concerted. See, e.g., Schuff Steel, 367 NLRB No. 76, slip op. at 7 (2019)

., 343 NLRB 695, 695 n.3 (2004); Astro Tool & Die Corp., 320 NLRB 1157, 1161–

62 (1996).

14 It is of no matter that the Charging Party states

did not make the post to

garner support from

coworkers regarding the Practice Administrator. The

Board applies an objective standard to determine whether employee activity is

concerted. See, e.g., Schuff Steel, 367 NLRB No. 76, slip op. at 7 (2019).

15 See Fresh & Easy Neighborhood Market, 361 NLRB at 153 (finding employee who

asked three coworkers to be witnesses for her workplace sexual harassment

complaint engaged in concerted activity); Morton International, 315 NLRB at 566.

16 We note the Charging Party’s Facebook post did not constitute “mere griping,”

because it was connected to employees’ preexisting concerns about the

conduct and how it related to employee attrition. We do not rely on

the Charging Party’s conversation with Employee 2 as evidence of the reason

Employee 2 resigned. Rather, it demonstrates the Charging Party discussed the

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (

(b) (6), (b)

(b) (6), (b) (7)(C)

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Although we conclude that concert may be proven by traditional means in

this case, the Region should also argue that the Charging Party’s Facebook post was

inherently concerted.17 The inherently concerted doctrine emerged in Trayco of

South Carolina, Inc.,18 where the Board held that an employee’s discussions with

her co-workers about higher wages constituted concerted activity even though the

discussions did not contemplate group action. In reaching that decision, the Board

observed that the object of inducing group action need not be expressed but can

instead be implied from the subject matter of discussion

in Trayco of

South Carolina, Inc.,18 where the Board held that an employee’s discussions with

her co-workers about higher wages constituted concerted activity even though the

discussions did not contemplate group action. In reaching that decision, the Board

observed that the object of inducing group action need not be expressed but can

instead be implied from the subject matter of discussion. Because higher wages are

a “frequent objective of organizational activity,” the Board reasoned that the

employee’s discussions about that subject impliedly were concerted.19 The doctrine

was enlarged in Aroostook County Regional Ophthalmology Center,20 where the

Board decided that discussions about changes in work schedules were inherently

concerted activity despite the absence of any talk about the initiation of group

action. Like wages, the Board concluded that work schedules are a “vital term and

condition of employment” that are “likely to spawn collective action.”21 Lastly, in

Hoodview Vending Co.,22 the Board added the subject of “job security” to the list of

vital terms and conditions of employment which, when discussed between two or

more employees, will be regarded as inherently concerted activity. Such discussions

concern “the very existence of the employment relationship and [will] quickly ripple

through, and resonate with, the work force.”23

supervision with Employee 2, a fact about which the

Charging Party can testify and furnish direct evidence.

17 See Memorandum GC 21-03, “Effectuation of the National Labor Relations Act

Through Vigorous Enforcement of the Mutual Aid or Protection & Inherently

Concerted Doctrines,” at 4–6 (Mar. 31, 2021).

18 297 NLRB 630 (1990), enforcement denied, 927 F.2d 597 (4th Cir. 1991).

19 Id. at 634; accord Automatic Screw Prods., 306 NLRB 1072, 1072 (1992), enforced

mem., 977 F.2d 582 (6th Cir. 1992).

20 317 NLRB 218 (1995), enforcement denied in part on other grounds, 81 F.3d 209

(D.C. Cir. 1996).

21 Id. at 220

al Aid or Protection & Inherently

Concerted Doctrines,” at 4–6 (Mar. 31, 2021).

18 297 NLRB 630 (1990), enforcement denied, 927 F.2d 597 (4th Cir. 1991).

19 Id. at 634; accord Automatic Screw Prods., 306 NLRB 1072, 1072 (1992), enforced

mem., 977 F.2d 582 (6th Cir. 1992).

20 317 NLRB 218 (1995), enforcement denied in part on other grounds, 81 F.3d 209

(D.C. Cir. 1996).

21 Id. at 220.

22 359 NLRB 355 (2014), vacated, 2014 WL 2929781 (Jun. 27, 2014), reconsidered &

affirmed, 362 NLRB 690 (2015).

23 Id. at 357.

(b) (6), (b) (7)(C)

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the profound impact supervisors can have on employees’ terms and conditions of

employment because of their authority “to hire, transfer, suspend, lay off, recall,

promote, discharge, assign, reward, or discipline other employees, or responsibly to

direct them.”28 The Board has long recognized that employees act for their mutual

aid or protection when engaging in concerted activity based on discussions about a

supervisor’s “capability or lack of it” because it undoubtedly has “a direct impact on

the employees’ performance of their daily tasks” and thus is likely to spawn

collective action.29

The facts of the present case affirm that concerns about such vital workplace

issues have the propensity to “quickly ripple through, and resonate with, the work

force,” as confirmed by the quick responses of three employees here.30 Even if the

Charging Party and Employees 1 and 2 had not previously discussed workplace

issues, the nascent discussions the Charging Party began on Facebook with her

coworkers about the Practice Administrator’s supervisory conduct and its effect on

employees’ job security and other workplace matters (potentially including work

schedules) can and should be regarded as inherently concerted activity

if the

Charging Party and Employees 1 and 2 had not previously discussed workplace

issues, the nascent discussions the Charging Party began on Facebook with her

coworkers about the Practice Administrator’s supervisory conduct and its effect on

employees’ job security and other workplace matters (potentially including work

schedules) can and should be regarded as inherently concerted activity.

Additionally, and in the alternative, even assuming the Charging Party’s

conduct did not constitute protected concerted activity, the Employer’s termination

of the Charging Party for

Facebook post violated Section 8(a)(1) under Parexel

28 See Labor Management Relations Act of 1947, Pub. L. No. 93-360 §1(a), (b), 61

Stat. 137 (codified as amended at 29 U.S.C. § 152(11)).

29 See Dobbs Houses, Inc., 135 NLRB 885, 887–88 (1962) (employees acted for

mutual aid or protection when they engaged in a concerted work stoppage over

numerous workplace issues, including employee complaints over supervisor’s

“capability or lack of it,” because this had “a direct impact on the employees’

performance of their daily tasks”), enforcement denied, 325 F.2d 531 (5th Cir. 1963).

See also Dreis & Krump Mfg., Inc., 221 NLRB 309, 315 (1975) (employee’s discharge

violated Section 8(a)(1) where he had given leaflets to other employees describing

his grievance concerning alleged negligence and improper supervision by his

foreman and other supervisors, because “the identity, capabilities, and quality of

supervision . . . has an impact upon employees’ job interests and their ability to

perform the task for which they were hired”), enforced, 544 F.2d 320 (7th Cir. 1976);

Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618, 618 n.1 (1959)

(affirming that “it is now well settled that employees have a right to protest by

concerted action the appointment of a supervisor”), enforced, 285 F.2d 8 (6th Cir.

1960).

30 Hoodview Vending Co., 359 NLRB at 357.

(b) (6), (b)