If there is one theme of this column over the years, it is that employers must be both credible and consistent in their explanation for employment decisions. One without the other is helpful, but both are necessary for an employer to prevail. While we see this issue raised most often in the context of summary judgment or trial decisions in court, a recent decision of the National Labor Relations Board reinforces the point. The decision in MCPc and Jason Galanter, Case no. 06-CA-063690 (May 23) also serves to remind nonunion employers that all employees are entitled to the protections of the National Labor Relations Act when it comes to retaliation for “protected concerted activity”—which is usually speaking up on behalf of co-workers over the terms and conditions of employment.

Complaint of Excessive Work Is ‘Protected Activity’ Under the NLRA

Jason Galanter was an engineer working for MCPc, an IT support company headquartered in Cleveland, Ohio. Galanter worked in the company’s Pittsburgh office when he was invited to a “team building” lunch with the director of engineering, Dominick DelBalso. During the lunch, Galanter raised concerns about his co-workers’ heavy workloads and urged DelBalso to hire additional engineers. He also stated that the company could have hired additional engineers for the $400,000 salary it was paying to a recently hired executive. Galanter was joined in this sentiment by a number of his co-workers.

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