Employee’s Actions in Mounting Defense to His Workplace Misconduct is Protected Concerted Activity

Michael Dela Paz, an employee of St. Rose Dominican Hospitals, argued with co-worker Habiba Araru, and threatened to “take care of her.” Dela Paz was placed on unpaid leave pending an investigation into the incident and was instructed not to contact any employees during his absence. Dela Paz ignored the contact ban by obtaining employee statements from co-workers in support of his position and submitting a petition against Araru signed by 28 co-workers. He was terminated for violating the hospital’s instructions and mounting a retaliatory campaign to get Araru fired.

The National Labor Relations Board filed a complaint on behalf of Dela Paz alleging that the hospital unlawfully terminated Dela Paz for engaging in conduct protected by the National Labor Relations Act. The Administrative Law Judge (ALJ) disagreed with the Board and held that, “instructions directed solely at one employee that ‘were never repeated to any other employee as a general requirement’ are not work rules.”

On appeal, the Board, as expected, overturned the ALJ’s decision. According to the NLRB, “many employees had a real or perceived problem with Araru’s attitude in the workplace affecting their working conditions” and Dela Paz’s conduct “was unquestionably concerted.” Dela Paz was awarded reinstatement and back pay among other remedies.

Warning an Employee to Not “Stick Her Neck Out” – Unlawful?

Five union employees of the Santa Fe Tortilla Co. sent a letter complaining about working conditions to their plant manager. Upon receipt, the manager called the employees into his office and told one worker that she “should not stick her neck out for anyone because no one would stick their neck out for her.” The National Labor Relations Board found this message to contain an implied threat of retaliation for the employee’s involvement in sending the letter, an act protected by Section 7 of the National Labor Relations Act.

Important to the Board was the fact that the employer “wields the ax in the workplace,” and the plant manager’s comment came on the same day employees presented their written complaints. Further the NLRB concluded the message “reasonably conveyed a threat of unspecified reprisal” for activity that was protected by the National Labor Relation Act.”

NLRB Continues to Ignore Court Ruling Regarding Arbitration Agreements

The National Labor Relations Board continues to hold that arbitration clauses precluding class actions by employees against their employer are unlawful despite a court ruling overturning the Board’s decision.

Employees of a New Jersey limousine company filed suit against their employer in the U.S. District Court for the District of New Jersey alleging that they were underpaid in violation of the Fair Labor Standards Act and state laws. These types of lawsuits are extremely popular across the country. The employer moved to dismiss the lawsuit and cited for support the employees’ signatures on agreements that they would not join in any class or collective claims or “jointly bring any claim” against the company. The NLRB said that maintaining and enforcing the class and collective action waivers was an unfair labor practice under the National Labor Relations Act.

A few years ago, the NLRB held in D.R. Horton Inc. that a complete ban on collective action interfered with employees’ NLRA-protected right to engage in concerted activity for their mutual aid or protection. The U.S. Court of Appeals for the Fifth Circuit disagreed with the NLRB and overruled its decision.

Unfortunately for employers, the NLRB’s decision is precedent at the NLRB level and Administrative Law Judges are required to ignore the court decision and follow the Board decision until the United States Supreme Court rules otherwise. So all companies who have an arbitration policy in their handbook prohibiting employees from suing the company in a class or collective action will lose at the Board level but likely win on appeal at the U.S. District Court level. Only if different District Courts rule differently on the issue will the U.S. Supreme Court get involved to settle the matter – but that would occur years from now, if ever.

Employee Fired for Profane Rant Against Owner Reinstated with Back Pay

Shortly after being hired, Nick Aguirre began complaining to his co-workers and manager about the employer’s compensation and break policies. Tony Plaza, the owner of the company, called Aguirre into his office, scolded him for these conversations, and repeatedly reminded Aguirre he could quit if he did not like working at the company. Aguirre lost his temper and in a raised voice started berating Plaza, calling him a “f-ing mother f-er,” “f-ing crook,” and an “a-hole.” Aguirre then told Plaza that if he was fired, Plaza would regret it. Plaza fired Aguirre.

An Administrative Labor Judge determined Plaza violated the NLRA by inviting Aguirre to quit, but lawfully fired him for “obscene and personally denigrating terms accompanied by menacing conduct and language.” As you can imagine, the NLRB overturned the ALJ.

Under Atlantic Steel Co., in determining whether an employee who engaged in otherwise protected activity lost the protection of the act, the Board considers (1) the place where the discussion led to an outburst, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s illegal conduct. Here, the NLRB decided that the three factors weighing in favor of protection from the National Labor Relations Act outweighed the one factor weighing against protection.

Written Warnings Not Needed to be Negotiated with Union During First Contract Bargaining

In 2012, the National Labor Relations Board issued the Alan Ritchey decision that changed the landscape of disciplining employees while negotiating with a union for an initial collective bargaining agreement. Until Alan Ritchey, companies that lost a union election were free to continue operating as non-union until a union contract was signed. Under Alan Ritchey, those companies can continue to operate non-union, except they need to negotiate major disciplinary action with the union before it is given to employees even if done before a union contract is signed. The case distinguished between disciplinary actions that have “an inevitable and immediate impact” such as suspension, demotion, and discharge on employee livelihoods and earnings, and less severe forms of discipline.

Recently, Kaplan International Centers lost a union campaign election and disciplined several employees while negotiating an initial contract. In an employer-friendly Memorandum of Advice from the NLRB’s Associate General Counsel, companies do not need to bargain over warning and certain other lesser discipline, including written warnings.

In labor law parlance, Kaplan’s written warnings to employees did not have “an inevitable and immediate effect on employees’ tenure, status, or earnings.” Accordingly, the union could not demand “pre-imposition bargaining” over the disciplinary measures.

Kaplan’s initial warnings informed the workers that a failure to improve performance could lead to further discipline, up to and including discharge, while the final written warnings indicated that any further unacceptable conduct could result in immediate discharge. According to the Associate GC, “in an at-will setting such as here, a Final Warning does not appreciably change an employee’s status.”

Latest No-Solicitation Policy to be Struck Down by the NLRB

Anyone who reads my Roetzel Recap: Labor Relations or has listened to me give one of dozens of speeches on how the National Labor Relations Act applies to non-union companies and how the National Labor Relations Board is targeting non-union companies will already know this. But, until no company’s handbook violates the Act, it is my duty to report these common cases.

The handbook policy stated, “Solicitation discussions of a non-commercial nature, by Associates, are limited to the non-working hours of the solicitor as well as the person being solicited and in non-work areas. (Working hours do not include meal breaks or designated break periods.)”

The NLRB found that this policy restricted Section 7 activity because it prohibited solicitation, including union solicitation in work areas during non-work time. The Board held that the rule “expressly provides that solicitations are limited to non-working hours and . . . non-work areas, including that both conditions must be satisfied before solicitation is permitted. Respondent argues that the rule permits solicitation in work areas when both employees are on non-work time. Perhaps that is what the Respondent meant to say, but it is not what the rule says.”

This case reinforces how critical it is for companies to have labor lawyers review and correct corporate handbooks before the National Labor Relations Board examines them with a fine tooth comb.

Minor Employer Misconduct During Organizing Campaign Nullifies Company’s Victory

Intertape Polymer Corporation won a union election 142 – 97. However, because of its seemingly innocuous conduct during the union organizing drive, the National Labor Relations Board nullified the victory and ordered a re-run election. At least the Board didn’t order a Gissel bargaining order, which sidesteps an election and orders the parties to immediately start bargaining an initial union contract. Nonetheless, this case is an excellent reminder of how easy it is to violate labor law and the importance of training management personnel in effective union-related communication.

During the pre-election period, Intertape Polymer engaged in three (apparent) minor violations of labor law. First, a low-level supervisor asked an employee who was eligible to vote in the upcoming election what he thought about the union. Second, Intertape Polymer’s supervisors handed out anti-union leaflets at the plant gate alongside union supporters who were handing out pro-union leaflets. Third, Intertape Polymer removed pro-union literature from the break room quicker than it typically removed non-union literation from the break room.

This case illustrates that even minor mistakes or a slight deviation from company policy or past practice during a union organizing drive can have catastrophic effects. Proper supervisory training is imperative. A well-trained supervisor will exercise the employer’s free speech rights without running afoul of the National Labor Relations Act.