Recent 2014 NLRB Decisions Affecting All Employers:

Several decisions this year from the National Labor Relations Board (the “Board”) demonstrate the Board’s aggressive enforcement actions to protect employees’ rights under the National Labor Relations Act (“NLRA”), whether or not the employer’s workforce was unionized.

Specifically, the Board decisions featured here focus on employees’ rights to engage in “protected concerted activities” under Section 7 of the NLRA. The Board has also focused on preventing unfair labor practices by union and non-union employers under Section 8 of the NLRA.

The following decisions demonstrate the lengths to which the Board will go to find protected activity by employees and unfair labor practices by employers, even in cases where an employer has legitimate business interests in preventing the activity.

Employer Who Discharged Employee for Violating Zero Tolerance Harassment Policy Nevertheless Violated the NLRA:

Nichols Aluminum, LLC (25-CA-082690; 361 NLRB No. 22)  Davenport, IA, August 18, 2014.

  • Employer maintained a zero tolerance policy for threats and harassment.
  • Employer discharged employee for making a “cut throat” gesture toward a coworker operating a forklift.
  • The discharged employee recently participated in a union strike and the coworker was a strike replacement employee.

The Board found the employer violated Section 8(a)(3) of the NLRA—which prohibits discrimination to discourage membership in a union—when it discharged the employee because: (i) the employer did not enforce the zero tolerance policy in a consistent manner; (ii) the “cut throat” gesture could have referred to shutting down the fork-lift; and (iii) the discharge was based on animosity toward the recent strike.

Employee Who Merely “Liked” a Facebook Post was Engaged in Protected Activity; Employer Violated the NLRA by Interrogating and Discharging Employees Involved in Facebook Posts; and Employer Maintained and Unlawfully Broad Social Media Policy:

Three D, LLC d/b/a Triple Play Sports Bar and Grille (34-CA-012915 and 012926; 361 NLRB No. 31)  Watertown, CT, August 22, 2014.

  • After employees of a sports bar discovered they owed more state taxes than anticipated, employees complained among themselves, and a former employee posted a message on Facebook: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”
  • In response to the message, several current employees followed up with complaints about owing money, and in so doing, one employee called a manager an “a**hole.” Another employee did not get involved in the discussion, but simply “liked” the original post.
  • After the employer became aware of the posts, it immediately terminated one employee involved in the Facebook discussion on the grounds that “she was not loyal enough” to be working for the employer.
  • The employee who merely “liked” the post was interrogated and told because he “liked the disparaging and defamatory comments,” it was “apparent” he wanted to work somewhere else. The same employee was also threatened with legal action and later discharged.

The Board first concluded that the mere act of “liking” the Facebook post was an “express[ion] of agreement” with the original complaint, and thus constituted protected activity, as did the Facebook discussion by the other terminated employee. The Board then determined the employees did not lose protection under the NLRA because their comments were not defamatory and no “so disloyal . . . as to lose the Act’s protection” under Jefferson Standard and its progeny.  Ultimately, the Board found the employer violated Section 8(a)(1) by:  (1) interrogating and threatening the employee who “liked” the Facebook post with legal action; and (2) unlawfully discharging both employees for their protected, concerted participation in a Facebook discussion.

The Board also found the employer maintained an overly broad “Internet/Blogging” policy that prohibited “inappropriate discussions about the company, management, and/or coworkers” on social media.  In reaching this conclusion, the Board found, in light of the unlawful discharges, the rule’s prohibition of inappropriate discussions was vague and would be reasonably interpreted by employees to prohibit discussions involving the terms and conditions of employment.

Employee’s Involvement of Reluctant Witnesses for a Harassment Allegation was Sufficient to Support Concerted Protected Activity:

 Fresh & Easy Neighborhood Market, Inc.  (28-CA-064411; 361 NLRB No. 12)  Phoenix, AZ, August 11, 2014.

  • Employee wrote a reminder message to her manager on the whiteboard in the employee’s break room. A coworker altered her message to change “TIPS” to “TITS” and drew a picture of a worm or peanut urinating on the employee’s name.
  • Employee wanted to lodge a sexual harassment complaint, and she copied the altered message on a piece of paper.
  • Employee asked three coworkers to sign the paper to acknowledge its accuracy, and the coworkers reluctantly agreed.

The Board found the employee engaged in protected concerted activity under Section 7 of the NLRA, and reversed the Administrative Law Judge’s contrary conclusion that the complaint was personal and not supported by her coworkers.

In reaching its decision, the Board stated:  “The concerted nature of [the employee’s] request would not be diminished even if [her] coworkers did not agree with her sexual harassment complaint, or . . . did not want to sign the document . . . .  [The employee’s] initial request, on its own, establishes concerted activity, regardless of whether her coworkers signed or refused to sign the document and notwithstanding their irritation with the manner of her request for their assistance.”  Although employer instructed employee not to obtain additional witness statements, the Board concluded that this “narrowly tailored instruction” did not violate the NLRA because employer’s legitimate interest in conducting an impartial and thorough investigation outweighed employee’s Section 7 rights.

Employer Violated NLRA by Maintaining Policy Prohibiting Employees from Sharing Discipline with Coworkers:

Philips Electronics North America Corporation  (26-CA-085613; 361 NLRB No. 16)  Memphis, TN, August 14, 2014.

  • Employee charged with harassment and intimidation was disciplined and later discharged by employer.
  • Prior to discharge, employee shared his discipline with other employees and stated loudly in the presence of other employees that he received the discipline because of a named coworker’s harassment allegations against him.
  • Although employer did not have a formal, written policy prohibiting employees from sharing discipline, employee’s manager wrote a file summary stating that employees are aware that discipline is confidential and cannot be shared, and employee’s termination notice included sharing confidential discipline with other employees as one of the grounds for the termination.

While the Board agreed that termination for harassment and intimidation was proper, it nonetheless held that the employer violated Section 8(a)(1) by maintaining a rule that discipline is confidential and prohibiting its employees from discussing or sharing their discipline with their coworkers.  See also Lucky Cab Co., 360 NLRB No. 43, slip op. at 7 (2014) (“An employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification for the prohibition”).

Employer Violated the NLRA when it Applied an Overly Broad “Inappropriate Behavior” Policy to Discharge an Employee and Stifle her Protected Complaints About an Ambiguous Inclement Weather Day Policy:

Hitachi Capital America Corp.  (34-CA-013011; 361 NLRB No. 19)  Norwalk, CT, August 8, 2014.

  • Employee complained about ambiguities in employer’s new Inclement Weather Day Policy and sent a series of emails criticizing the policy and management’s interpretation of the policy.
  • In the emails, employee used plural pronouns “we” and “us” in reference to the policy’s impact on other employees and expressly referenced other employees in verbal discussions with management about the policy.
  • Management found employee’s emails to be rude, inappropriate and offensive, and issued a written warning to employee. During the meeting on the written warning, management concluded the employee was being insubordinate and would not change her behavior.
  • In response, the employer decided to terminate the employee the following day.

Employer maintained a policy prohibiting employees from engaging in “[i]nappropriate behavior while on Company property.”  Although the written warning did not expressly assert a violation of this policy, the written warning characterized the emails as rude and disrespectful, and stated that this was not her warning for “inappropriate/profane” language.

After concluding the employee’s verbal conversations and emails (that included plural pronouns) were sufficient to constituted protected concerted activity, the Board concluded the employer violated Section 8(a)(1) when it discharged the employee because it did so by applying an overly broad “inappropriate behavior” policy to stifle protected activity.  The Board recognized that a workplace rule which does not expressly prohibit protected concerted activity is nonetheless unlawful if:  “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”  Because the Board concluded the rule was applied to restrict the employees Section 7 rights, it declined to determine whether the rule was facially overbroad.

Employer Violated the NLRA through Various Actions that Impaired Section 7 Rights:

Inova Health System  (05-CA-035104 and 035331; 360 NLRB No. 135)  Fairfax, VA, June 30, 2014.

The Board concluded that the employer violated Section 8(a)(1) by:  (1) suspending and then terminating a nurse for emailing management, on behalf of herself and other nurses, expressing concerns about the employer’s student nurse fellows program; (2) instructing the same nurse not to discuss her suspension with anyone other than her husband; (3) suspending and then giving a final written warning to another nurse because she and other nurses protested the first nurse’s discharge; and (4) failing to promote a third nurse because she told another nurse that she should not have volunteered to stay late to assist with surgery because “it created a bad precedent and . . . management would come to expect” the same from other nurses.

Employer Violated the NLRA when it Discharged an Alleged Harasser for Violating Zero Tolerance Retaliation Instruction by Collecting Signatures to Support Discipline Against the Alleged Harassment Victim:

Dignity Health d/b/a St. Rose Dominican Hospitals (28-CA-094717; 360 NLRB No. 126) Henderson, NV, June 12, 2014.

  • Employee was the subject of harassment allegations by coworker.
  • Employee was placed on administrative leave pending the results of the harassment investigation. While on leave, he was instructed not to contact fellow employees.
  • Despite this instruction, employee circulated a petition soliciting signatures from other employees who had concerns about the alleged victim’s attitude and conduct toward other employees.
  • After returning from leave, employee was told there was “zero” tolerance for conduct perceived as retaliation against the alleged victim. Nonetheless, employee continued collecting signatures from coworkers concerned with the alleged victim’s attitude and employee presented the same to the alleged victim’s supervisor.
  • Employee was terminated for violating the zero tolerance retaliation instruction.

The Board concluded the employee engaged in protected activity when he circulated the petition, and the employer violated Section 8(a)(1) by threatening employee with termination and ultimately terminating employee for circulating the petition.  Shockingly, the Board reached this conclusion even though retaliation or, as the Board put it, “personal vindication” “may have been among [employee’s] goals.”

Employer Violated NLRA by Instructing Employee Not to Speak with Anyone Outside Chain of Command Regarding Workplace Complaints and by Maintaining Overly Broad “No Gossip” Policy:

 Laurus Technical Institute (10-CA-093934; 360 NLRB No. 133)  Decatur, GA, June 13, 2014.

  • Employee raised harassment concerns and complained to a supervisor outside her chain of command.
  • Employer’s CEO met with employee and instructed her not to speak with any coworkers or other supervisors outside her chain of command regarding any workplace issues.
  • Shortly thereafter, employer instituted a new “No Gossip Policy.” Employee was suspended and then discharged for violating the policy and the CEO’s instructions.

The Administrative Law Judge (“ALJ”) found the No Gossip Policy was “overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment.”  The ALJ further found the employer suspended and terminated the employee for engaging in protected activity.  The Board affirmed the ALJ’s finding that the employer violated Section 8(a)(1) by maintaining an overly broad no gossip policy and by suspending and terminating the employee for engaging in protected activity.

NLRB Increases Stakes and Expands Remedies Against Employers Who Commit Unfair Labor Practices:

HTH Corporation, Pacific Beach Corporation, and KOA Management, LLC, a single employer, d/b/a Pacific Beach Hotel  (37-CA-007965, et al.; 361 NLRB No. 65).

  • Employer had a ten year history of violating the NLRA.
  • Employer continued to violate Board and Court injunctions for prior violations.
  • Board considered expanded remedies against the recidivist employer.

The Board agreed the imposition of a broad cease and desist order was appropriate, as was the imposition of a notice reading requirement, but in light of the employer’s pervasive, continued and willful violations, the Board determined that these remedies were insufficient. After concluding that the Board has broad remedial authority, it determined that it has the power to enhance historically recognized remedies, and the Board imposed the following additional remedies against the employer:

  • Employer must reimburse the Board’s General Counsel and the Union the costs and expenses incurred in the investigation, preparation, presentation, and conduct of the present proceeding before the Board, including reasonable counsel fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses and per diems, and other reasonable costs and expenses;
  • Employer must reimburse the Union for the bargaining expenses in incurred in attempting to bargain in the face of employer’s willful defiance of the Act, including additional costs in communicating with unit members, holding meetings offsite due to the employer’s unlawful refusal to allow union agents on their property, and other related expenses incurred as a result of the employer’s unlawful conduct;
  • Employer ordered to pay, with interest, employees’ lost earnings and expenses incurred by employees as a result of unilateral changes to the terms and conditions of employment, and employer’s failure to contribute to employees’ 401K plans;
  • In addition to traditional posting requirements, employer was required to post an Explanation of Rights with clear general examples relevant to the unfair labor practices found against the employer;
  • Rather than the standard 60 day posting requirement, employer was required to: (1) post the above for three years; (2) deliver copies to newly hired employees, managers and supervisors for three years; (3) mail both documents to the homes of all current employees, managers and supervisors; (4) mail copies of the Board’s decision to all new and current employees, supervisors and managers for three years; and (5) retain a copy of the notice and Explanation of Rights in employees’ personnel files for three years with proof of all ordered mailings;
  • Employer was ordered to publish the notice and Explanation of Rights in a publications of broad circulation chosen by the Board’s Regional Director twice a week for eight weeks;
  • Employer’s supervisors and managers were required to attend the public reading of the notice and Employee Rights meeting; and
  • Board representatives will be permitted to visit facility to ensure compliance for a period of three years.

Significantly, the Board considered, but elected to defer its determination of whether front-pay for terminated employees is appropriate, in lieu of reinstatement.  While this was an egregious case, all employers should be concerned about this new precedent for expanded remedies.  There is little doubt that these expanded remedies and variations thereof will carryover and be applied in less egregious cases. Moreover, the Board has opened the door to the possibility of front-pay as an available remedy.

Summary

The NLRB remains eager to demonstrate its role and relevance in the day-to-day workplace. At Woods Rogers, our Labor and Employment practice group works to eliminate potential risk for our clients by monitoring business interests and goals against the Board’s constant scrutiny.

Article brought to you by:
Victor O. Cardwell
Principal
Chair, Labor and Employment Practice Group

Joshua R. Treece
Associate
Labor and Employment Practice Group

Michael P. Gardner 
Associate
Labor and Employment Practice Group