NLRA 101: Recent NLRB Cases Provide Overview of Broad Range of Unfair Labor Practices

01-Oct-2016

NLRA 101: Recent NLRB Cases Provide Overview of Broad Range of Unfair Labor Practices

 

By Jason R. Mau

 

            Under the National Labor Relations Act (NLRA), an employer is prohibited from interfering with, restraining, or coercing employees in the exercise of rights guaranteed within the act.  Those guaranteed rights include the right to self-organize, to bargain collectively with representatives of their choice, and to engage in other concerted activities.  An employer is also prohibited from discriminating against employees for the purpose of discouraging membership in an union.  A review of the most recent opinions released by the National Labor Relations Board (NLRB) illustrate the variety of actions that can lead to a violation under the NLRA.  While some of the actions recently cited are admittedly obvious, reflecting on the wide range of violations serves as a good reminder to carefully consider all conduct related to daily labor relations.  At the very least, the overview should identify behavior an employer should avoid.

Violating Employees’ Rights to Engage in Concerted Activities

            Violations of the NLRA often show up when employers get in the way of employees attempting to exercise their rights to discuss or show concern with employment conditions.  Some employer violations are obviously directed at restraining such activity, while others are simply inattentive missteps that inadvertently cross into behavior that the NLRA prohibits.  Specific examples of the obvious violations include threatening employees with loss of jobs or benefits when employees are contemplating joining or voting for a union; questioning employees about union activities in a coercive or restraining manner; and deliberately granting wage increases to discourage union organization or membership.  The not-so-obvious violations include broadly worded policies that could be interpreted to encompass concerted activities protected by the NLRA. 

            In the recent NRLB case, Novelis Corporation the employer, an aluminum products manufacturer, became obvious in its attempts to keep workers from forming an union.  So obvious in fact that the transition from lawful interactions with its employees to unlawful labor practices was nearly instant , the results of which earned the employer an extensive Order from the NLRB requiring affirmative counteractive actions.  Where the company initially thought it could dissuade any negative reactions provoked by its decision to implement changes related to employee compensation, it ended up committing “numerous and widespread unfair labor practices.” 

            The catalyst in this case was the reaction to the employer’s decision discontinuing Sunday premium pay and the practice of counting holidays and vacation days towards overtime eligibility.  Things really started to go awry around the time it realized employees were speaking with a local union about representation.  The employer clearly took the offensive in response to the movement to organize.  It implicitly threatened employees with plant closure, loss of business, reduction in wages, and more onerous working conditions by spreading numerous concerns without any objective basis that organizing would impair the company’s ability to perform contractual obligations. The company also disparaged the Union by prohibiting any union insignia and selectively monitoring posting and distribution of informational pamphlets. Finally, to reinforce its basic message that the union was an interfering outsider, it announced it was restoring the premium and overtime policies and then attempted to show that the organizing activity actually jeopardized its attempts to reinstate those same policies.  For a moment, the company attained the results it sought, a decline in employee support for the Union, but it was short lived as the NLRB had little difficulty in concluding that the unpopularity was motivated almost entirely by unlawful labor practices. 

            Of utmost concern for the Board here was “the most flagrant of unfair labor practices,” threatening plant closures and other types of job loss, since these ideas tend to stick in employee’s minds and are most persuasive for longer periods of time than any other conduct.  According to the Board, this conduct destroyed any chance of fair elections for representation.  The Board also cited as substantial unfair conduct the timing of the restoration of the overtime and premium pay policies, finding it was done to forestall any momentum of the organizing campaign.   

            Similarly, the case of David Saxe Productions is an example of an employer that transitioned quickly from lawful interaction to unfair labor practices when initially challenged.  Here, the owner of a Vegas dance production agreed to meet with his dancers and hear their concerns related to the terms and conditions of employment.  Initially, the owner lawfully asked what their concerns were.  However, it appears his emotions got the best of him and his response to the legitimate concerns quickly entered into unlawful territory. The NLRB ultimately characterized his responses as threatening and of a kind that tend to discourage and coerce a reasonable employee from engaging in protected concerted activities.  Here, the owner, in so many words, told the dancers to stop complaining and to remember that without him they would have no job.  These sentiments were shared more than once during the meeting that had quickly become adversarial, to the point that the NLRB could not help but conclude that under the totality of the circumstances the explicit language used by the employer could reasonably be considered coercive and threatening by one of the attending employees.  Thus, the employer was ordered to take affirmative action to ensure the policies of the NLRA were effectuated. 

            To be sure, the above extreme examples are not the only employers that have recently been ordered to rescind unfair labor practices.  Employers that have maintained seemingly innocuous work rules, policies, and handbook provisions have also found themselves being cited for restraining concerted activity.  For example, the employer in G4 Secure Solutions (USA) Inc., found itself in this very position when its remarks to a group of employees to refrain from discussing the Union at work led to Board complaints.  In addition to the comments, violations of the NLRA were found in the security company’s work rules and policies.      

            Generally, employers may forbid employees from talking about a union while actively working if other non-task-specific subjects are also prohibited, but once the employees are free to discuss subjects unrelated to work, this prohibition becomes a violation of the Act.  This scenario was found in G4 Secure, along with unlawful ambiguities in the employer’s confidentiality rule and its social networking policy.  By extending the confidentiality rule to require written permission for all public statements about the company, and the social networking policy to require permission from the Legal Department to comment on all work-related matters in addition to prohibiting all postings showing employees in uniform or at a place of work, the employer maintained policies which were too broad by NLRA standards.  The NLRB has consistently held that such broad policies could be reasonably interpreted by employees as prohibiting the discussion of terms and conditions of employment regardless of the lawful motivations to protect confidentiality and client privacy.  Prohibition of discussions of terms and conditions of employment are basic concerted activities the NLRB seeks to protect and thus overrides these concerns when policies are not carefully drafted.  Thus, the NLRB found that the employer in G4 Secure had engaged in unfair labor practices.

Discrimination Based on Union Activity

            Another example of unlawful labor practice recently cited is discrimination of employees that are engaged in concerted activities or union participation.  Discrimination is found when such activities are found to be a motivating factor in the employer’s action against the employee.  Under the analysis set forth in the NLRB Wright Line case, upon a showing by the General Counsel for the NLRB that the employee’s concerted activity was a motivating factor in an adverse employment action, the employer is provided with an opportunity to show that it would have taken the same action even in the absence of the protected concerted activity.  Where a compelling showing is made, the burden of meeting the standard of proof required under Wright Line can be very difficult.  This difficulty is illustrated in several of the recent Board decisions.

            These recent cases illustrate that discriminating actions can occur in many different forms.  For example, in Aliante Gaming, LLC, a buffet hostess wearing a union badge displaying her officer position within the union, was unlawfully suspended and terminated for failing to follow proper customer service etiquette; in S. Freedman & Sons, Inc., the most senior driver for the paper-products distributor responsible as a union steward for filing grievances and participating in Board hearings, was unlawfully suspended and terminated for refusing to take a route that would have required him to work overtime; and in King Soopers, Inc., an employee was discharged for questioning whether she was being asked to do work that belonged to a different bargaining unit.  Additionally, in the two extreme cases cited above, one employee was discharged after participating in the grievance-airing meeting in David Saxe, and an employee was demoted for posting comments on Facebook criticizing pay policies and employees voting against the Union in Novelis Corporation.

            In all but the King Sooper case, the timing of the adverse employment action served as substantial proof that the motivation for the actions were unlawful.  Even where the employers were able to articulate reasons for the adverse employment actions, the employers were unable to overcome findings that the reasons were simply pretext for suspending or discharging its employees.  In Aliante Gaming, LLC, the Board focused on the fact that there was recent increased union activity eliciting concern among the managers, and testimony that the general manager noticed the employee’s union button during the interaction that he subsequently reported to the employee’s direct supervisor as falling short of the company’s customer service standards.  The company cited to this interaction, as well as two other minor infractions, as justification for the discharge.  However, similar employees had only been given written warnings for similar infractions, and had received final warnings for more flagrant infractions.  Thus, because of the timing and the employee’s position with the union, the Board upheld the administrative judge’s finding of an unlawful motivation for the discharge. 

            In S. Freedman & Sons, Inc., unlawful motivation was similarly found because the discharge took place right before a Board hearing for an unrelated unfair labor practice charge.  The unrelated charge was filed by the union steward who was ultimately discharged.  The reason proffered for the discharge was insubordination related to a refusal to drive an additional route that would have required overtime.  However, in light of a contractual provision allowing a driver to refuse if junior drivers were available, the Board found that the circumstances did not properly support the action.  Thus, the discharge prior to the Board hearing was found to be discrimination. 

            Timing was also a primary factor in the David Saxe case.  There, the owner was unable to overcome the fact that he refused to renew the expiring contract of the most outspoken dancer just a week after the grievance-airing meeting discussed above.  Citing to her unsatisfactory performance and attitude over the last two years and her upcoming expiring contract did not provide the necessary evidence to overcome the charge of discrimination, especially since he did not previously take action on complaints about the dancer’s performance and attitude when her previous two contracts had been renewed.  Thus, as with the other cases cited above, the NLRB found that the employer had unlawfully discriminated against the employee for engaging in concerted activities.

Lessons to be Learned

    While it would be difficult here to outline all the steps the employers could have taken to avoid violations, the overview should at least highlight the importance of proceeding in caution where employee rights to engage in concerted activities may be infringed.  One obvious takeaway should be that when organizing activity first takes place, or it is first recognized, management should take a step back and wisely assess the situation and potential violations before proceeding, as a couple of the cases above show that it is all too easy to let emotions rule the day.  Also, as illustrated above, violations can arise when work rules and policies are not drafted carefully and encompass too broad of a scope.  When such policies are maintained, they will be found to interfere with the rights of employees to engage in concerted activities.  A simple rule of thumb is to go back after first drafting or amending handbooks or policies to make sure that prohibitions are not simply stated in a broad general fashion.  As always, if there is any question as to the application of the NLRA on your company’s policies or operations, do not hesitate to seek the guidance of an employment and labor law expert.