BAD HAIR DAY EVOLVES INTO CONDUCT PROTECTED BY THE NLRA
Nichole Wright-Gore, a supply clerk in a non-union nursing home, had a bad hair day. To hide her embarrassment, she wore a hat. An executive of the nursing home told her that wearing a hat in the workplace violated the company’s dress code and she was told to take off the hat or go home. She went home rather than suffer the embarrassment of having other employees see her bad hair.
The following day, Wright-Gore returned to work, again wearing a hat. Presumably, she thought that the fact that employees were invited to wear Halloween costumes that day would give her greater latitude. Again, she was told to remove the hat. As she took off the hat, she complained that the company was unevenly enforced its dress code. Her complaint generated a written warning for insubordination.
Over the next two weeks, Wright-Gore talked to other employees about her bad hair days and the disparate enforcement of the dress code. The other employees “generally” agreed and sympathized with her. She also used her cell phone to take pictures of other employees who appeared to be out of compliance with the dress code. As she talked to other employees about her alleged mistreatment, she showed the pictures as “proof” of the validity of her complaint. When one employee complained to his manager that Wright-Gore had taken his photograph without his consent and had shown it to other employees, Wright-Gore was fired for taking photographs inside the nursing home in violation of the facility’s no photograph rule.
Wright-Gore filed an unfair labor practice charge, alleging that her discharge violated the National Labor Relations Act. Her charge asserted that her taking of photographs was protected as “concerted activity” in protest of a work rule. The Board filed a complaint against the nursing home and an Administrative Law judge of the Board agreed with the Board. The nursing home was ordered to reinstate Wright-Gore with full back pay.
The employer appealed the case to the full Board, which, expectedly, affirmed the ALJ. The employer then filed an appeal with the Federal Court of Appeals for the Fourth Circuit. Both before the Board and in its appeal to the Court, the employer argued that the employee was motivated solely by self-interest and had been engaged in a personal, rather than group, campaign. Therefore, contended the employer, Wright-Gore was not engaged in concerted activity protected by the National Labor Relations Act.
In an unpublished opinion filed on October 28, 2011 (NLRB v. White Oak Manor, 4th Cir. No. 10-2122), the Court affirmed the Board’s decision and ordered Wright-Gore reinstated to her job and made whole for any losses due to her discharge. In deciding the case, the Court agreed with the Board that, when the employee sought the support of co-workers, her conduct went beyond her self-interest and became protected by the law. The fact that she was not asked by the employees to be a spokesman on their behalf was not fatal to her claim. Further, the fact that she was not fired for violating the dress code but for violating the rule against taking photographs was not a sufficient defense because there was evidence that other employees had taken, posted and circulated photographs taken within the facility in the past without being disciplined and the taking of photographs was part of a related sequence of events.
The employee’s personal protest involving the disparate enforcement of the dress code, of which the violation of the no-photograph rule was a part, had morphed into concerted activity protected by the National Labor Relations Act.
There are several lessons to be learned from this case:
A Court on review will give significant deference to the Board’s interpretation of the law. As a consequence, goofy Board decisions may survive judicial review.
The employee’s complaint about the dress code began as something very personal, but the mere fact that the employee sought emotional support from other employees was sufficient for the Board to conclude that the employee was engaged in concerted activity. That’s the goofy part.
Once protected conduct is found, the Board will find subsequent related but different events to be protected as well. Here, the employee was discharged for violating a rule that was different from the rule she was protesting because the violation of the no-photograph rule was linked to the events about which the employee was protesting.
What is “common” about this case is that the failure to enforce a rule consistently always raises the question of “why in this case?”
This question is at the heart of many complaints brought under many laws, including Title VII, state civil rights laws and, as here, the federal labor law. Employers must account for inconsistencies in enforcement of rules at the time the rule is enforced if the inconsistencies are not to be the basis for subsequent liability.
When deciding issues of discipline and discharge particularly, employers can no longer restrict their analyses to protections afforded under the civil rights laws. Now, the investigations must include whether the employee’s conduct may be protected concerted activity under the National Labor Relations Act.
What is not “common” about this case is the a frighteningly broad definition given by the Board to what constitutes protected concerted activity. While employers may assume that courts will ultimately bring reason into play and correct the Board’s excesses, the assumption is often wrong because courts will give the Board’s interpretations of the Act, even the goofy ones, great deference on appeal.