Today’s Reminder that Documenting Poor Behavior is Critically Important

A Burger King franchise was sold. The new owner hired most of the old company’s employees. One employee not hired was a union organizer who was involved in the Fight for $15 campaign. It is illegal to not hire a known union organizer because of that employee’s union organizing activity.

At trial, the employer’s manager, the new company did not hire the organizer because he was insubordinate, refused to work certain shifts, stole food, and often reported to work late. The judge did not believe the manager’s testimony because  she failed to document the tardies, failed to document the refusal to work certain shifts, and failed to report any of the alleged bad behavior to human resources.

The manager allegedly did document the poor performance “for awhile,” but stopped because she “never received a response.” To all managers out there – document to cover you own a&# even if HR doesn’t do anything about it. To all HR personnel out there – respond to managers’ reports of poor performance. Here, both sides are guilty of dropping the ball while the unsuspecting business owner is left footing the bill.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at

NLRB Reaffirms Obligation to Bargain Over Pre-Contract Discipline But Also Establishes a Burden-Shifting Defense

The Board found that the discharges in Total Security met the standard established in Alan Ritchery for pre-imposition bargaining and that no such bargaining took place. The board declined, however, to order retroactive enforcement of its decision, holding that such enforcement would constitute manifest injustice.

Total Security also set forth, for the first time, the remedies available for future Alan Ritchey violations. In addition to standard remedial relief, i.e. cease and desist orders, a requirement to bargain, and notice-posting, the Board opined that make-whole remedial relief, including reinstatement and back pay and purporting to settle the pre-discipline bargaining violation would be subject to review under the Board’s standards for non-Board settlement agreements if challenged. In the event the parties post-violation bargained in good-faith to impasse over the discipline, back pay would run until the date of impasse.

Such make whole relief would be subject to an employer’s affirmative defense that the discipline was “for cause” under the Act. This new “for cause” defense places the burden on the employer, during the compliance phase of the case, to show “(1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge.”

The burden of proof then shifts to the charging party to challenge the employer’s showing by demonstrating, for example, discipline for the same behavior or other reasons for leniency. The employer may rebut such evidence by proving that the employee would have received the same discipline regardless. The ultimate burden of persuasion remains, at all times, with the employer.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at

NLRB Says Loud, Profane, Obnoxious, Stalking Employee Discipline was Unlawful

Cheryl Walton, an employee of the United States Postal Service was, for lack of a better term, a troublemaker. She was loud, aggressive, confrontational, and had a reputation for regularly using profanity. During a meeting with her supervisor she became agitated and cut the meeting short. Upset, Walton shook her finger and yelled, “I can say anything I want. I can swear if I want. I can do anything I want.”

Afterwards, Walton started showing up at her supervisor’s office, calling her from the lobby and demanding to see her. Walton even began “closely watching” her supervisor as she arrived for her shift. Walton ultimately received a warning letter for her behavior.

The Board rejected the administrative law judge’s conclusion that Walton had lost protection under the NLRA with a “disturbing pattern of conduct.” The NLRB majority said Walton didn’t lose protection under the National Labor Relations Act despite acting in a way that was “loud, profane, disrespectful, and obnoxious.” “In these circumstances,” the board wrote, “we find that the nature of Walton’s outburst weighs, albeit not by much, in favor of finding that she retained protection of the NLRA.”

In his dissent, Member Miscimrra said the NLRA doesn’t “give an employee carte blanche to invoke the act’s protection, on the one hand, while physically threatening another person, literally, with the other.” “Nor should the board give its own cloak of approval to such conduct, which goes way beyond what anyone would reasonably deem acceptable in a civilized work setting,” he wrote.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at

Company’s Discipline toward Pro-Union Employees Unlawful

A provider of paratransit services began to question whether its drivers were submitting all of their daily fares. The company conducted an audit, which revealed that some drivers had not remitted all of their fares to the company. The company required those drivers to repay the amounts it had identified as discrepancies.

Two drivers refused to repay the amounts and began supporting a union organizing effort. The company suspended and eventually fired the two employees for failing to explain why their reported fares differed from what the company discovered through the audit. But, the National Labor Relations Board thought the discipline was a ruse and that the company interfered with the employees’ right to form unions and retaliated against them for doing so.

The Eleventh Circuit Court of Appeals agreed because the employees’ pro-union conduct was a “motivating factor” in the company’s actions against the employees. The company violated the law in the following ways:

  • Telling employees that electing a union would be “futile”;
  • Interrogating employees about the activities of the two employees who were fired;
  • Failing to investigate the employees’ explanation about the audit findings;
  • Failing to allow the employees to review the records related to the fare discrepancies; and
  • Treating the two employees differently from other employees by suspending them during the investigation but allowing other employees with fare discrepancies to continue working.

Companies have a right to investigate suspected misconduct and a right to discipline employees for their misconduct. However, companies cannot discriminate against pro-union employees during an investigation or when administering discipline.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at

National Labor Relations Board Affirms Discharge for Employee Who Lied During Investigation

A decertification vote for the International Brotherhood of Teamsters Local 445 was on the horizon when three union newsletters appeared in the employee break room. All of the letters included anonymous handwritten comments such as “Dear P—ies, Please Read,” “Hey cat food lovers, how is your income doing?,” and “Warehouse workers, RIP.”

Several female employees complained to the company that the handwritten statements were vulgar, offensive, and threatening. The company undertook an investigation, which included interviewing a warehouse driver. The driver initially denied responsibility for the messages, but later admitted writing them. The company fired him because of the written comments and his dishonesty during the company investigation. The union filed an unfair labor practice charge.

The Board decided this case without addressing the issue of whether the handwritten statements were protected by the National Labor Relations Act. Instead, the Board concluded that the company lawfully terminated the driver for his dishonesty during the investigation. The company has legitimate business interests in investigating the harassment complaints. Employers may need to question employees about such complaints, even if the conduct took place during the employee’s exercise of Section 7 rights. The Board concluded that the company never questioned the driver about his union views or other union activity, and that there was no evidence that the company used the investigation as a reason to pry into union activity generally.

The driver’s false statements to the company were not protected under the NLRA. Companies are required to promptly investigate employee misconduct, including charges of harassment, and the Board correctly found that Section 7 activity does not act as a bar to these investigations.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at

Employee Wrongly Terminated for Discussing Discipline with Co-Worker

An employee of a Memphis, Tennessee distribution center for Philips Electronics received a written warning at the conclusion of an investigation into a sexual harassment complaint made against him by a co-worker. A note was then placed in his personnel file indicating he was “aware that disciplinary action forms are confidential and should not be shared on the warehouse floor at any time.” The employee was summarily discharged after showing co-workers on the floor the written warning.

This type of note is a smoking gun against a company, since under NLRB precedent, “an employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification for the prohibition.” Yet, Philips Electronics convinced the Administrative Law Judge that the dismissal was lawful by arguing that it did not have a written rule against such discussions nor was it the Company’s policy to prohibit them.

However, the documentation convinced the NLRB that the company maintained an illegal rule against employees discussing disciplinary actions. Specifically, the Board held, “We find that [Philips] maintained an unwritten rule that discipline was confidential and prohibiting employees from discussing discipline on the warehouse floor at any time.” Employers take note – whether your policy is written or unwritten, whether it is company-wide or limited to a single manager, whether it pertains to sexual harassment or any other form of discipline, employees are, with narrow, rare exception, permitted to discuss their discipline and show co-workers their disciplinary write-ups.

NLRB Loses at Court of Appeals, Switches Reasoning for Reinstatement on Remand

Joseph Agins was active in trying to unionize four Starbucks coffee shops. According to the NLRB ruling, he was terminated for having twice cursed during arguments with managers. In the first incident, Agins was angry that an assistant manager did not come to help him right away when the shop got busy. When the manager did arrive to help, Agins said loudly it was “about damn time,” dramatically shoved a blender in the sink, cursed, and told the manager to “do everything your damn self.” Agins was suspended for several days.

Then, six months later, Agins and several employees entered the shop while off duty to protest a prohibition on wearing union pins while at work. While there, an off duty assistant manager from another Starbucks asked Agins about the protest in a way that an NLRB judge deemed was “meant to be confrontational.” Agins believed that the assistant manager had previously made derogatory remarks about Agins’ family’s support for unions. The confrontation escalated with a profanity-laced outburst from Agins. The assistant manager on duty – the same one Agins cursed at before – admonished Agins but did not call the police or ask him to leave the premises. A month later Starbucks fired Agins saying he “was insubordinate and threatened the store manager” while also mentioning his union support.

The NLRB initially ruled that Agins was engaging in protected activity during the first incident and his behavior during the confrontation was not bad enough to lose protection of the National Labor Relations Act. On appeal, the Second Circuit Court of Appeals overruled the NLRB and remanded the case back to the Board that “improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”

Having lost its first argument, upon remand the NLRB relied on different legal precedent and said that a company cannot fire an employee if the firing was motivated in part by union activity and the company does not prove it would have fired the employee even without the union activity. In the end, the Board ordered Starbucks to offer Agins his old job back and compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.