COVID-19 and protected concerted activity

Let’s suppose you’re a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

Although Charging Party discussed the gown issue with Charging Party on March 30, 2020, prior to drafting letter to the Employer, there is no evidence that the object of the conversation was initiating or inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, Charging Party letter is solely focused on personal disgust at the notion of sharing gowns and fear for own and family’s safety, which believed to be at risk. …

Even if we credit Charging Party that a group discussion and plan of action to not share gowns that evening occurred, there is no evidence that the plan went any further than that.… [T]he employees here never took their concerns to management as a group. And, although Charging Party spoke to Charging Party about discharge which appears to have motivated Charging Party to take a stand that evening during shift, there is no evidence that they formed a plan of action together. Nor is there evidence the Employer considered Charging Party’s solo speech and refusal to work to have been concerted.

Furthermore, although Charging Party discussed the gown sharing issue with coworkers on March 30, Charging Party alone confronted management regarding the issue on March 29 and 30 and did not claim on those dates to be speaking on behalf of anyone. While Charging Party invited two employees in the parking lot to join a protest that evening, Charging Party informed them that it … would move forward with or without them. Nor is there evidence that any other employee formed a plan with Charging Party to refuse to work.… No employee requested Charging Party to act on their behalf or authorized to do so; simply decided on their own to represent coworkers.