Sixth Circuit: Employer’s Forgiveness of Wildcat Strike Must Be Unequivocal Before Firing Striking Employees Violates NLRA.

On Friday, the Sixth Circuit affirmed a decision by the NLRB upholding the termination of wildcat strikers who claimed that their termination violated the NLRA because the employer had condoned – or forgiven – their unlawful strike before they were terminated. Exum v. NLRB, No. 07-2070. An ALJ had previously agreed with the employees, but the NLRB and the Sixth Circuit found that the statements relied upon by the employees were too equivocal – or ambiguous – to constitute ratification of their illegal strike. It is also clear from the opinion that the Court found the employees’ version of events to be too incredible to believe over the contradictory testimony of the employer’s president. Otherwise, when an employer condones – or forgives – unprotected misconduct by an employee, it can violate the NLRA to later terminate the employee for protesting terms and conditions of employment.

Most of the facts in the case were undisputed. The employer operated a slaughter house and had a bargaining agreement with the union for the last forty years. The CBA guaranteed the employees a 35-hour workweek and prohibited any strikes or work stoppages prior to attempts to resolve any dispute. However, during the 2001 economic slowdown, the employer asked the union to agree to shorten the workweek to 15 hours/week instead of layoffs because at least 21 employees were needed to properly process the meat. Although the union agreed to the reduction in work hours, it apparently failed to so inform the employees, who then walked out – with freshly slaughtered cows on the factory floor -- without first trying to resolve the problem as required by the CBA.

When the striking employees demanded to speak with the president, he agreed to meet with them individually, but not as a mob. He instructed them to return to work within fifteen minutes or to leave the premises. He also explained that if they chose to leave the premises at that point, he would consider them to have voluntarily resigned their employment. When many of them refused to return to work, he asked them to leave – which they did. When they asked if they were being fired, they claimed that he said no and pleaded with them to return to work. As one employee put away his work clothes, he had a brief conversation with the president where he indicated that the employee should take his pen with him because he would need it to fill out job applications. The union representative again arrived at the plan, met briefly with the president, but did not explain anything to the employees – other than to instruct the departing employees to meet with him at the union hall the next afternoon. The union representative denied that any of the employees told him that they intended to return to work the next day. Some employees claim the president told them to put their things away and return the next day.

When some of the striking employees returned to the plant the following morning, they did not attempt to enter the plant, speak with the guard or return to work. Rather, they remained in their cars outside the plant gates and claimed that they were somehow prevented from entering the plant. When the striking employees picked up their final paycheck a few days later, they were told to clean out their lockers and return any company property in their possession. They also received letters from the employer confirming their resignations, and none of them protested or filed a grievance under the CBA.

When strike misconduct has been “clearly shown, condonation may not be lightly presumed from mere silence or equivocal statements, but must clearly appear from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their misconduct had not occurred. . . . The case law in this circuit makes it clear that the employer’s action expressing forgiveness cannot be vague or equivocal.”

In this case, the NLRB “first noted that there were two separate work stoppages in this case. The first was when the employees en masse walked away from their jobs and stood outside the plant. The second was when the employees were given an opportunity to return to work with no repercussions. While neither was a protected strike, the first was clearly forgiven by Employer if the employees returned to their stations, and all employees who did so remained employed. Petitioner and the other employees who continued the strike and chose not to return to their stations initiated a second work stoppage that was not condoned, and for which they were terminated.”

“There is substantial evidence in the record to support the Board’s finding that Employer did not condone the employees’ strike. The employees’ behavior does not support a claim of condonation. Not only did the employees not tell Canada on the day of the strike that they intended to return to work the next day, but they also did not discuss with Freudenberg the determination on their separation notices that they had voluntarily quit and abandoned their jobs. Furthermore, if Freudenberg told the employees to return to work the next day, such a comment when taken in the context of his other statements was entirely ambiguous. Because the employer’s actions in forgiving an unprotected strike must be unequivocal, and a petitioner must demonstrate by clear and convincing evidence that such forgiveness occurred, the court finds that Petitioner has failed to satisfy his burden.”

Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0395p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Snags Another Non-Union Employer with Confidentiality Provision in Employment Agreement.

Late last month, the NLRA concluded that a temporary agency twice violated the National Labor Relations Act when it discharged an employee for breaching an unlawful term in his employment agreement requiring him to maintain the confidentiality of the terms of his compensation. Northeastern Land Services, Ltd. d/b/a The NLS Group and Jamison John Dupuy, Case 1–CA–39447 (NLRB 6/27/08).

The employer temporary agency leased employees to third parties. There is no indication that either the temporary agency employer or its client employers were unionized. The temporary agency employer allegedly violated Section 8(a)(1) of the NLRA “by maintaining in its employment contracts an overbroad confidentiality provision and by terminating [the complaining] employee . . . for breaching that confidentiality provision.” In particular, the temporary agency required its employees to sign an employment which contained the following clause: “Employee also understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.” The clause did not limit the confidentiality obligation to disclosing the information to competitors or clients, and thus, could unlawfully encompass unions.

After he began work, the employee began to experience problems with getting paid in a timely manner. After complaining to the temporary agency, he also complained to the leasing employer. In addition, the leasing employer had promised him a daily stipend for using his personal laptop at work, but when the temporary agency indicated that it planned to reduce this stipend, the employee objected to both the leasing employer and the HR Coordinator of the temporary agency. He also asked the leasing employer to retain him through another temporary agency if these problems could not be resolved and then refused to bring his laptop to the job site any longer.

The temporary agency CEO then notified the employee that they felt that they had done enough to accommodate him, that nothing would make him happy and that he was being terminated. When he objected (on the grounds he had engaged in protected conduct by filing a complaint with a state agency), the CEO responded that the employee had “not lived up to [his] end of the bargain” in that he had failed “to comply with his contractual agreement—i.e., the confidentiality provision in the temporary employment agreement—not to disclose the terms of his employment to outside parties.”

The NLRB articulated its standard for determining the validity of work rules under the NLRA. “If the rule explicitly restricts Section 7 activity, it is unlawful. If the rule does not explicitly restrict Section 7 activity, it is nonetheless unlawful if (1) employees would reasonably construe the language of the rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In applying these principles, the Board refrains from reading particular phrases in isolation, and it does not presume improper interference with employee rights.” (citations omitted).

In this case, the confidentiality provision in the temporary agency’s employment agreement “is unlawful because employees reasonably would construe it to prohibit activity protected by Section 7. Specifically, . . . the provision, by its clear terms, precludes employees from discussing compensation and other terms of employment with ‘other parties.’ Employees would reasonably understand that language as prohibiting discussions of their compensation with union representatives.” Therefore, “the confidentiality provision is unlawfully overbroad at least in this respect, in violation of Section 8(a)(1).”

“Under extant Board precedent, an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act.” Because the employee was fired to violating “an unlawfully overbroad” rule, his termination was also a separate violation of the NLRA.

The Board then ordered the temporary agency to rescind the confidentiality provision from its employment agreements and other publications, to re-hire the employee to the same or substantially similar job with full back pay and benefits, to eliminate any references in its records to the discharge of the employee, to post a standard notice of its NLRA violation and to mail a notice “to all current and former employees employed by the [temporary agency] under its temporary employment agreement (including but not necessarily limited to its right-of-way agents) since July 23, 2001, the date from which the complaint alleged and we have found that the [temporary agency] maintained the overbroad confidentiality provision in its temporary employment agreement.”

Insomniacs can read the full decision at http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35289.htm&size=147.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB: Employers Can Support Charities and Ban Use of Employer’s Email System Without Violating the NLRA

[Editor's Note: The Court of Appeals for the District of Columbia reversed the Board's holding that the employer did not violate the NLRA by disciplining the union president on the grounds that the employer permitted other personal email solicitations.Guard Publishing Co. d/b/a The Register-Guard v. NLRB, No. 07-1528, U.S. Court of Appeals for the District of Columbia Circuit (July 7, 2009). ]

Just in time to stuff the Xmas stockings of good charities (like the Salvation Army, Red Cross and United Way) and employers, a divided NLRB in a 3-2 decision recently announced a new rule regarding the use of employer email systems to support union activities in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (12/16/07). The NLRB’s majority concluded that that a newspaper publisher employer did not violate Section 8(a)(1) of the National Labor Relations Act by maintaining a broad policy which prohibited employees from using its e-mail system for any “non-job-related solicitations.” Further, the Board’s majority rejected allegations of discriminatory enforcement of the policy when the employer permitted incidental personal use of the email system (and to periodically solicit funds for the United Way) as long as the employees were not permitted to use the email system to elicit support for groups and organizations, including union. Indeed, the Board explicitly endorsed, “[f]or example, a rule that permitted charitable solicitations but not noncharitable solicitations [even though it] would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.”

In particular, the employer’s written policy prohibited the use of e-mail for “non-job-related solicitations”: "Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."

In practice, the employer allowed a number of nonwork-related employee e-mails (such as such as baby announcements, party invitations, jokes and the occasional offer of sports tickets or request for services such as dog walking), but there was no evidence that it regularly permitted e-mails urging support for groups or organizations, other than the United Way. The employer issued two written warnings to an employee (who was also the local union president) for sending three union-related e-mails to the workforce during non-working time. One email was sent from her workstation computer and two were sent from the union offices to the employees’ work email addresses. The unfair labor practice complaint alleged that the employer’s maintenance of the policy and its enforcement against the union president violated the NLRA.

Addressing the maintenance of the policy, the Board majority reasoned that employees have no statutory right to use an employer’s equipment for Section 7 purposes. “An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir. 1983). The Respondent’s communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.”

Moreover, the majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, applied only to face-to-face solicitations was inapplicable to the use of an employer’s e-mail system. Consequently, the Board majority found no basis to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” "As with oral solicitations, however, if an employer has no rule in place that limits nonwork-related e-mails to nonworking time, the employer must show an actual interference with production or discipline in order to discipline employees for e-mails sent on working time."

With respect to the alleged discriminatory application of the policy to the union president’s e-mails, the majority “clarified” that “discrimination under the Act means drawing a distinction along Section 7 lines.” “In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” The majority adopted the reasoning of the Seventh Circuit Court of Appeals, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” Therefore, the majority overruled the Board’s prior decisions to the extent they are inconsistent.

Applying the new standard, the majority found that the employer had permitted a variety of personal, nonwork-related e-mails, but had never permitted e-mails to solicit support for a group or organization. Because two of the union president’s e-mails were solicitations to support the union, the employer did not discriminate in violation of the NLRA by applying its e-mail policy to those e-mails. However, the majority found that a third e-mail by the union president was not a solicitation, but was simply a clarification of facts surrounding a recent union event. Accordingly, the enforcement of the policy with respect to that e-mail was unlawful (even though it was sent from her work station) because the employer had discriminated against the employee on the basis of her union activities.

As the Board explained the future application of its new rule, “an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees” because “[i]n either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates” in violation of the NLRA. For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Board also unanimously affirmed the judge’s finding that the employer violated Section 8(a)(1) by maintaining an overly broad rule, in the absence of special circumstances, prohibiting employees from wearing or displaying union insignia while working with the public.

Insomniacs can read the full decision at http://www.nlrb.gov/about_us/news_room/template_html.aspx?file=http://www.nlrb.gov/shared_files/Press%20Releases/2007/R-2652.htm.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.