Non-Profit Employee’s Advocacy To Rehire Former Employee Was Protected Activity Under NLRA

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Oct 30, 2023

Sarah Raybon worked at the American Federation for Children Inc., a national school-choice advocacy nonprofit.  Steve Smith, a former Arizona state senator, was hired in early January 2019 as the Organization’s Arizona state director.  Smith was Raybon’s direct supervisor.  When Smith was hired, Raybon was facilitating the rehiring of Gaby Ascencio, a former Organization employee who had lost her eligibility to work in the United States in 2017 due to a change in circumstances in her immigration status.  Ascencio was a valued colleague and highly regarded within the Organization, so the Organization undertook the process of sponsoring her for a work permit so she could be reemployed.  While this process was ongoing, the Organization held a position for Ascencio.

In initial meetings between Smith and Raybon, Raybon brought up that they were in the final stages of rehiring Ascencio and Raybon conveyed the importance of Ascencio to the Organization.  In these meetings, they also discussed appropriate website content regarding immigration status for the Organization’s English and Spanish-language websites.  Because of these meetings, Raybon formed the belief that Smith did not understand Ascencio’s importance to the Organization or why a position was being held for her.  Raybon also had concerns, based on their discussions about the website, about Smith’s leadership impact on the Hispanic community.  Raybon received word from her former supervisor that one of Smith’s former colleagues had applied for Ascencio’s position.  Smith had also sponsored legislation as a state senator that was “anti-immigrant.”

In February 2019, Raybon went to Washington D.C. for the Organization’s annual conference and while there, raised complaints about Smith’s management practices and the rehire of Ascencio to her colleagues.  Following the conference, the Organization’s president, John Schilling, confronted Raybon that he had received three reports that Raybon called Smith a “racist.”  Raybon denied calling Smith a racist, but did acknowledge that she had issues with Smith’s leadership style.  Smith demanded that the Organization investigate Raybon.  The investigation concluded that there was no evidence that Smith was racist or biased against people of color.

Schilling decided to terminate Raybon for creating a toxic atmosphere and making an incendiary accusation that Smith was racist.  Schilling called Raybon and told her that several colleagues had confirmed that Raybon had called Smith racist, that she had violated the employee handbook, and Smith was refusing to work with her anymore.  Raybon said she would resign.

Raybon then worked for another nonprofit school-choice advocacy organization, which, like her prior organization, was a member of an Arizona-based school choice coalition.  The prior organization took issue with Raybon’s support for an Arizona school official whom the prior organization considered to be a political opponent.  Raybon’s new organization was dropped from the invitation list for meetings of the school choice coalition.

Raybon filed a charge against the prior organization (American Federation for Children Inc.), alleging they violated the National Labor Relations Act (NLRA) for maintaining unlawful work rules and directives, seeking Raybon’s resignation in retaliation for her concerted protected activity, and their post-discharge efforts to interfere with her new employment.

Section 7 of the NLRA protects employees who take action in the workplace for when they engage in “protected concerted activity,” which usually involves the employee acting on behalf of themselves and other employees.

The Administrative Law Judge (ALJ) concluded that Raybon did not engaged in protected activity in February 2019 with her efforts to rally opposition to Smith’s policies, including Smith’s perceived lack of support for rehiring Ascencio. Specifically, the ALJ concluded that under prior precedent in Amnesty International, employees’ efforts of mutual aid and protection on behalf of a non-employee were not covered under the NLRA.  Since Ascencio was not an employee of the Organization, Raybon’s actions were not protected.

The National Labor Relations Board (NLRB) overturned the ALJ’s decision and overruled the Amnesty International decision.  The NLRB found that Raybon engaged in concerted activity for the purpose of mutual aid or protection when she advocated among her colleagues for their support of Ascencio’s rehiring.  Raybon had a series of conversations with her colleagues, including managers, and those she knew would be more sympathetic to Ascencio’s situation and whom would advocate for Ascencio’s rehire.  The NLRB determined that these actions showed Raybon was looking to solicit group action in support of Ascencio’s rehire.

The NLRB also concluded that Ascencio was an employee under the NLRA, and her immigration status was immaterial because it did not prevent her from applying for work.  Raybon’s actions were for the mutual aid and protection of all current employees because Ascensio was desired as a coworker, and it would benefit all employees if she was rehired.  Having determined that Raybon engaged in concerted activity, the NLRB remanded the remaining allegations back to the ALJ.

American Federation for Children, Inc. 372 NLRB No. 137.

Note: This case is another example of employee protections expanding under the current NLRB appointed by President Biden.  This case held that in some circumstances, NLRA protection also applies to actions by workers that are taken in support of non-employees, such as applicants.

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