By Braden Campbell

Law360 (February 25, 2021, 3:23 PM EST ) A worker who raised concerns about a personal protective equipment shortage and a colleague's COVID-19 diagnosis was not protected by federal labor law, a National Labor Relations Board prosecutor said in a letter declining to press her retaliatory firing case.

The Office of the General Counsel on Wednesday denied the unnamed worker's challenge to a regional official's decision not to bring a suit against LCS Community Employment LLC, saying the worker's complaints were not concerted activity protected by the National Labor Relations Act because they were purely her own.

"This conclusion, coupled with the lack of evidence of employer knowledge of [the worker's] discussions with other employees or any evidence of animus, led to our conclusion that there was insufficient evidence demonstrating that your client engaged in protected concerted activity," said Mark Arbesfeld, the director of the general counsel's Office of Appeals.

The NLRA gives workers a right to raise safety complaints or take other workplace actions "for mutual aid or protection" and makes it illegal for employers to fire workers who exercise this right.

The worker filed a charge with the NLRB's Chicago office in October, alleging she was fired for taking concerted action. The acting regional director there declined to bring a complaint on the worker's behalf in December, finding she did not have evidence showing she was fired for taking group action or "for reasons other than those advanced by the employer," and the worker appealed. The employer's reasons for firing her are not clear from publicly available documents. 

NLRB case law holds that workers are protected when they take action "with or on the authority of other employees, and not solely by and on behalf of the employee," Arbesfeld observed. This can include "circumstances where individual employees seek to initiate or to induce or to prepare for group action," but does not apply to actions taken "solely by and on behalf of the employee." But this is only part of the battle: To prove a violation, prosecutors must also show the employer was motivated by the protected activity, and would not have fired the worker otherwise.

In this case, investigators in the Chicago office found that the worker spoke with colleagues before her firing, but not about taking group action. Rather, these conversations focused on her "personal concerns about the lack of personal protective equipment and … personal concerns regarding the COVID status of another employee," Arbesfeld said. Further, when she spoke to the employer's health director about possible coronavirus exposure, she was likewise speaking on her own behalf," Arbesfeld said.

These actions did not shield the worker from firing because she was acting alone, Arbesfeld said Wednesday. Additionally, evidence shows the worker was fired for "legitimate business reasons," Arbesfeld said.

Attorneys for the company and the worker did not immediately respond Thursday to requests for comment. 

NLRB prosecutors have previously said workers are protected when they raise group concerns about safety equipment during the coronavirus crisis. Notably, former general counsel Peter Robb highlighted the issue in a guidance document summarizing active litigation on pandemic-related issues, saying his office would press a claim accusing a food delivery company of illegally firing a worker who spearheaded a protest demanding personal protective equipment.

The employer is represented by Jason Selvey and Gregory Andrews of Jackson Lewis PC.

The worker is represented by Christina Papavasiliou of CP Law Chicago LLC.

The case is LSC Community Employment LLC, case 13-CA-267103, in the Office of the General Counsel.

--Additional reporting by Vin Gurrieri. Editing by Abbie Sarfo.

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