Rare, ALJ Chastises NLRB for Filing Complaint on Clearly Bogus Claim

An employee was playing with a tablet computer during a company meeting. His supervisor told him to stop, but he refused to do so. She wrote him up for insubordination, and the employee laminated the warning and posted it in his cubicle where his fellow workers could see it. The employee was told to take down the posting or he would be suspended three days. He complied, but his union filed an unfair labor practice charge on his behalf, which turned into the NLRB filing a complaint against the company for infringing on the employee’s protected concerted activity regarding a term or condition of employment.

The Administrative Law Judge (ALJ) who heard the case noted that by posting the warning the employee was not enlisting the support of his fellow employees or trying to induce group action – either to use electronic devices in business meetings or to protest unfair disciplinary practices, generally. The ALJ determined that the company overreacted to the posting and that the laminated warning reflected poorly on the employee. Nonetheless, the ALJ found this conduct was so remotely connected to Section 8(a)(1) rights that “the Union should not have filed the charge and the [NLRB] should not have issued the complaint.” The ALJ then quoted the Board’s own language from another case: “The Board’s rising case load and the problems involved in handling it could be alleviated if cases of this type were not processed.”

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