Perception Versus Reality: Fifth Circuit Backs Board's Unfair Labor Practice Finding On Termination Based On 'Perceived' Section 7 Activity

The National Labor Relations Board (Board) recently notched a win when the U.S. Court of Appeals for the Fifth Circuit found that a staffing company committed an unfair labor practice by terminating its employee when she complained directly to one of the staffing company's customers — the entity for which the employee provided services — about her wages after being instructed to bring complaints directly to her employer. Capstone Logistics, LLC v. N.L.R.B., 122 F.4th 194 (5th Cir. 2024). Notably, the Fifth Circuit held there was "sufficient evidence in the record to support the Board's finding that a motivating factor" for the employee's termination was the employer's "belief that she had raised group employment complaints" to the employer's customer. Id. at 204 (emphasis added). In short, the employer's perception that a terminated employee engaged in protected concerted activity — regardless of whether the employee actually engaged in such activity — is sufficient