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THE DANGER OF MISTAKING TALK FOR SOLICITING


Talking about a union during work time in a work area cannot be prohibited, says the National Labor Relations Board, unless all non-work talk also is prohibited.  What does that do to an employer's otherwise valid no-solicitation rule?  Where is the line between talking about a union (which realistically cannot be prohibited) and soliciting on behalf of or against a union during work time in work places (which can be prohibited)?  

The line is probably not where you think it is.

Boeing's struggles with the Board and the International Association of Machinists & Aerospace Workers ("IAM") in connection with its South Carolina facility has rubbed up that issue and raises a red flag.  In that case, an active employee union organizer spent time in non-work areas during non-work time seeking to convince his co-employees to support the union and trying to get union authorization cards signed. After the shift began and the employee was supposed to be working, the employee continued his discussions in favor of the union with other employees.  Boeing's supervisor met with the organizer and reminded him that he could not talk about or distribute fliers about the union during work time in a work area.  The employee was directed to Boeing's presumptively valid no-solicitation/no distribution rule.  The IAM filed an unfair labor practice charge, alleging that Boeing violated the law by banning discussions about union-related subjects while permitting other non-work talk (e.g, sports, weather, movies).  The Regional office of the Board filed a complaint and an administrative law judge agreed.  Boeing did not appeal.

The principle is not new and the ALJ cites several cases that were decided prior to the current Obama Board.  However, the application of the principle to real-life conduct in the workplace is murky at best. What is clear is that unions are more likely to raise the issue and the Regions are more likely to issue complaints alleging that the enforcement of a no-solicitation policy by a supervisor was actually prohibiting talk rather than solicitations.

Defenses based on an employer rule against discussing controversial issues (e.g., politics, religion, abortion, unions) because of a concern over abusive conduct arising out of such discussions have been unsuccessful for lack of proof that such talk, if fact, produced such unwanted behavior.  

The line between "talk" and "solicitation" is hard to draw and asks a lot of supervisors.  An invitation to a union meeting has been held to be just "talk," while, in pre-Obama Board cases, asking an employee to sign an authorization card, even where the card was not physically present during the discussion, has been  held to be solicitation.  It is questionable whether the Obama Board would go so far.  

Bottom line:  your supervisors must be trained in the differences between "talk," which cannot be prohibited unless all non-work discussions are prohibited (unrealistic), and "solicitation," which would violate a lawful no-solicitation rule.  If an employee is merely expressing an opinion about unions as good or bad, the chances are that the talk cannot be prohibited.  However, if the employee is seeking an immediate response from the listener ("sign a card"), the likelihood is that the employee is soliciting.  The space between these two extremes is great and many shades of grey.  

It is safe to say, the current Board will draw the line in the favor of limiting the enforcement of no-solicitation rules.   

 

 
 
 
 

BAD HAIR DAY EVOLVES INTO CONDUCT PROTECTED BY THE NLRA


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. 

 
 
 
 

Labor Board Finds Discharge of Employee for Secretly Recording Disciplinary Meeting with Supervisor Violated the Law


In a case that has not been picked up by the mainstream press, but which further evidences the pro-union activism of the current National Labor Relations Board (“Board”), an employer has been found by the Board to have violated the National Labor Relations Act when it discharged an employee for secretly recording a meeting with his supervisor. Further the Board held that the employer also violated the Act by issuing a rule that prohibited employees from making secret audio recordings in the workplace. See Stevens Media, LLC, 356 NLRB No. 63 (2/14/2011)

The facts of the case were as follows: A supervisor informed an employee (newspaper reporter) that he wanted to meet with him. A colleague of the employee said that the purpose of the meeting was to give the employee a warning and suggested that he needed a witness. The employee then requested that a witness be present, but the supervisor denied the request. The employee called his union representative, who advised him to attend the meeting and to take notes. However, at the suggestion of other employees, the employee brought a recorder into the meeting and secretly recorded it. The supervisor learned of the secret recording, and discharged the employee for what the supervisor characterized as “the worst act of defiance in the news room.” Thereafter, the company issued a memo to employees prohibiting all secret recordings of meetings.

The Board decided first that the employee’s conduct constituted “protected concerted activity” because the employee had consulted with other employees. Therefore, secretly recording the meeting constituted an extension of the “concerted activity.” Noting that, while concerted activity can lose its protection under the NLRA if it is “egregious,” the employee’s secret recording was not so egregious that it lost its protection. In support of its conclusion, the Board relied on a two findings: 1) the employer did not have a rule barring such recordings, and 2) the recording did not break Hawaii law.

With respect to the employer’s subsequent rule prohibiting secret recordings in the workplace, the Board found the issuance of the rule was unlawful because it had been in response to the employees’ protected conduct. However, the Board did not stop there. The Board also, and gratuitously, held that the employer’s rule prohibiting employees from making the secret audio recording was too broad and ordered the employer to rescind the rule and to notify its employees in writing that the rule was no longer in force.

The reasoning of the Board in this case puts employers on the horns of a dilemma with respect to work rules. On the one hand, the Board cites the absence of a policy against secret recordings as one reason why the recording by this employee was not so egregious that it lost the protections of the Act. On the other hand, the Board found the employer’s subsequent rule against secret recordings was too broad and had to be rescinded because it violated the Act.

This case is just another in an increasing number of cases (with more to come) where the Labor Board has expanded the scope of activities protected by the law and critically examined rules of conduct in the workplace to determine if any may “chill” union activity. That the employee was represented by a union did not factor into the decision and, therefore, the case can be used to further the Chairman of the Board’s expressed intent to scrutinize vigorously the rules of conduct in non-union workplaces.

In this regard, the Chairman is already on record that a host of workplace rules in non-union companies will be found to be in violation of the Act because they are too broad and may “chill” union activity. Rules the Chairman has already stated violate the Act are the following: divulging private or confidential information to third parties, making false statements about the employer, improper conduct, conduct that is disloyal or disruptive, use of abusive or profane language, and intimidation, interfering or otherwise acting offensively toward other employees.

Employers should review their rules/codes of conduct now to avoid an easy way for terminated employees to obtain reinstatement with back pay and/or an easy "victory" for a union seeking to organize an employer's employees and appear as the protector of employee rights.  Adding to the urgency is the Labor Board's current use and threatened use of extreme and draconian remedies beyond the simple reinstatement with back pay of discharged employees for violating rules the Board believes are too broad could chill union activity.  Some of these remedies include federal court injunctions requiring reinstatement and back pay of the employee prior to the final adjudication of the merits of the discharge, reading to assembled employees by the employer's senior officer of a list of  employee rights to organize and to participate in union/concerted activity, permitting union organizers to be in the non-work areas of the facility to facilitate their talking to employees and obtaining authorization cards, and providing blocks of compensible time during which employees would be required to attend meetings in the facility conducted by union organizers. 

 
 
 
 
 

James Redeker

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.