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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.   

 

 
 
 
 

THE RISKS OF LENIENCY: FORBEARANCE MAY BE COSTLY


On April 25, the Tenth Circuit Court of Appeals decided a “why now?” case with facts that are all too common for employers who are too lenient with problem employees.  The cause for the leniency – fear of litigation, good intentions, inattention – is irrelevant.  The fact that an employee is permitted to continue to underperform or engage in unacceptable conduct can cause real and expensive problems, not only while employed but also after the employer finally is driven to the brink and terminates the employment altogether. 

 

The Plaintiff in this case was an African-American who was employed in 1999.  Between the date of hire and mid 2007 when he was discharged, he had accumulated a record of twenty-three disciplines, five of which were for sexual harassment.  In December of 2006, the Plaintiff, with two co-workers, complained that there were too few African-Americans in management.  Within two months thereafter, the Plaintiff was disciplined twice more, one for unprofessional conduct in response to a supervisor’s instruction and the other, a final warning, for disrespect to a supervisor.  In addition, a co-worker requested to move away from the Plaintiff because of his constant criticism of female supervisors.

 

After the final warning, a human resource manager examined the Plaintiff’s entire work record and recommended that he be fired, both because the discipline was not having a corrective effect and because he would be a negative comparator in the event of a need to discharge another employee for conduct similar to that he had exhibited.  The recommendation was followed and the Plaintiff was discharged.

 

The Plaintiff’s allegation was that he was discharged in retaliation for his complaint about the lack of African-Americans in management.  His proof was that he had been disciplined often, including several final warnings, before his complaint and his conduct apparently had been tolerated by his employer because he was only disciplined.  After the complaint, however, the same kind of conduct resulted in his discharge.  The “Why Now” question, in his mind, was answered by the fact that he had lodged a race discrimination complaint.  In support, the Plaintiff cited a prior case in which the same court had found that the use of criticisms of recent performance as a basis for a discharge was suspect, requiring trial, because similar performance in the past resulted only in minor critiques.

 

The District Court didn’t buy the Plaintiff’s argument and granted Summary Judgment.  The Court of Appeals affirmed, distinguishing the case cited by the Plaintiff as having involved perceptions and judgments while many of the Plaintiff’s disciplines were due to objective behavior and complaints from other employees.

 

The employer in this case won, so to speak.  It still had the litigation costs associated with both the district court and court of appeals proceedings.  Also, a few different facts (e.g., the prior disciplines being opinion based) or a different court and the employer would have had the expense of a full-blown trial, in not liability predicated on the employer’s prior leniency.

 

I draw your attention to this case not because it established some great or new legal principle.  Rather, this case demonstrates the danger of what I see time and time again in my practice -- excessive leniency and misplaced problem avoidance – two conditions that cause employers unnecessary angst and expense.

 

There is a danger to discharging employees without due process, usually defined in terms of progressive discipline.  There is also danger in giving an employee too many breaks or delaying discharge decisions endlessly out of a fear of being sued.  Employees who are unsatisfactory must be told and helped to correct their problems.  However, when the employee demonstrates an inability or unwillingness to improve, the employment should be terminated.  Keeping an employee on too long risks keeping in the workplace someone who not only is or may become a mischief-maker, but also may become a negative comparator in other discharge situations.  Finally, keeping nonperformers or bad actors in the workplace will depress good workers and promote an environment of mediocrity, something no employer should desire.

 

One final note about mischief-makers.  Mischief-making is in the eye of the beholder and much of what some employers would see as mischief is actually protected by a law.  The National Labor Relations Board recently decided a case (Perexel) in which it found that an employer who preemptively discharged an employee out of fear that the employee would engage in union activity violated the National Labor Relations Act.  The violation, the Board majority held, was that the discharge was in retaliation for a possible exercise of protected rights.  Although the case is outrageous, it cannot be ignored.  The Perexel principle has to be factored into any future analysis regarding employee discipline/discharge.  Extending the principle a tad, it’s possible to imagine a court adopting a similar theory of retaliation in the civil rights, safety, wage and any other area of the law which protects employees who exercise the rights granted by that law. 

 

 

 
 
 
 
 

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.