NLRB Dismisses Discriminatory Discharge Charges Because Discharged Employees Signed Releases of Claims in Severance Agreements.

Last Fall, the NLRB issued a surprising decision dismissing the Unfair Labor Practice Charges filed on behalf of 37 employees who purportedly had been laid off on account of their union activities because they had signed releases of claims in their severance agreements before any ULP Charge had been filed or even contemplated. BP Amoco Chemical–Chocolate Bayou, 351 NLRB No. 39 (Sept. 29, 2007). In doing so, the Board applied the same four-factor standard it applies to releases negotiated by the Board’s General Counsel following the filing of ULP Charges:

(1) “Whether the parties to the Board case have agreed to be bound, and the position taken by the General Counsel regarding settlement.” “Tere is no dispute that the alleged discriminatees voluntarily agreed to be bound [to the severance agreements]. Not only did each of them sign the agreement, but, as the parties stipulated, they were aware of the content, advised of the meaning [by their individual attorneys and/or the union], and knew that they were waiving and releasing claims against the Respondent.

(2) “Whether the settlement is reasonable in light of the violations alleged, the risks inherent in litigation, and the stage of litigation.” “At the time the agreements were signed, no charges had been filed, and the prospect of litigation was not obvious. Moreover, there was significant risk that a charge alleging discriminatory selection would not be meritorious. Little or no union activity was occurring at the time of the downsizing, and the record does not show that all of the alleged discriminatees had engaged in protected activity or that the Respondent was aware of it. . . . Indeed, the General Counsel acknowledged weaknesses in the case, conceding that “[w]e do not have a smoking gun” and that many of the alleged discriminatees had work histories which were “less than pristine.”

(3) “Whether there has been any fraud, coercion, or duress by any party in reaching the settlement.” “Respondent encouraged the alleged discriminatees to consult attorneys, provided them sufficient time [of 45 days] to carefully review and assess the agreements, and provided them with the opportunity to revoke the agreements within a reasonable period after execution.”

And (4) “Whether the respondent has a history of violating the Act or has previously breached settlement agreements.”

Insomniacs may 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/351/v35139.htm&size=294.

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.

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.

Sixth Circuit: Prima Facie Case Does Not Require Female Plaintiff To Prove that She Was More Qualified Than Male Replacement

On December 19, 2007, the Sixth Circuit reversed summary judgment in favor of an employer where the female plaintiff had been laid off one day after a male employee was hired onto her work crew and she was never rehired even though the employer’s workforce increased overall by twelve laborers in the plaintiff’s division. Vincent v. Brewer Co., No.06-4138 (6th Cir. 12/19/2007). The district court had dismissed the case on grounds that her male replacement was more qualified, and thus implied that she was not sufficiently qualified for her position as required to meet her prima facie case. However, the Sixth Circuit noted that a plaintiff need only prove that she was replaced by someone outside the protected class and need not show that the replacement was less qualified, or even as qualified, as she. She would only need to show that she was similarly qualified to a similarly-situated male if she was claiming different treatment instead of being replaced by a male.

The employer had also argued it had not discriminated against the plaintiff because it had laid off other employees at the same time as her and that she had a history of misconduct. However, the Court noted that there was sufficient potential evidence of pretext in that, among other things, (1) the other employee were laid off were temps, unlike the plaintiff; (2) there was evidence of numerous sexist comments by the decisionmaker and other managers; (3) she had received several favorable performance evaluations and been promoted in the past; (4) her co-workers claimed that she was very productive; and (5) there was little temporal proximity between her layoff and the prior instances of misconduct. Therefore, there was enough of a factual dispute in the evidence for a jury to decide whether the plaintiff had been laid off on account of her sex as she claimed.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/064138p.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. 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.

Ohio Supreme Court: Although Employers Still Cannot Retaliate, They Can Terminate Employees Receiving Workers’ Compensation for Other Reasons

On December 20, 2007, the Ohio Supreme Court “clarified” (although some may say partially reversed) its 2003 decision in Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357. The Court now holds that that “an employee who is terminated from employment while receiving workers’ compensation has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act” and limits the Coolidge decision to teachers who are both receiving workers compensation and are covered by O.R.C. § 3319.16. Bickers v. W. & S. Life Ins. Co., Slip Opinion No. 2007-Ohio-6751.

In Bickers, the at-will plaintiff had not been provided with a light duty assignment and, instead, had been terminated while receiving temporary total disability payments as a result of a workers’ compensation injury. She did not file a claim for workers’ compensation retaliation under O.R.C. § 4123.90 (which has a short limitations period), but instead, filed a public policy wrongful discharge claim. In essence, she argued that even if she wasn’t fired in retaliation for seeking workers’ compensation, it violated the public policy of the state of Ohio to fire an employee while receiving workers’ compensation benefits. The trial court dismissed her claim, but the appellate court reversed. After all, the Ohio Supreme Court had previously held in the Coolidge syllabus that “[a]n employee who is receiving temporary total disability compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition.”

After acknowledging the receipt of much criticism for Coolidge, the Ohio Supreme Court now holds that the Coolidge decision involved only the narrow issue of just cause for terminating teachers (receiving workers compensation) under O.R.C. § 3319.16. Moreover, the workers’ compensation retaliation statute precludes the need for a common law remedy involving the termination of employees while receiving workers compensation. Therefore,”R.C. 4123.90 . . . provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act.” Because O.R.C. § 4123.90 prohibits only retaliatory discharges, it is no longer unlawful for an employer to terminate a non-teaching employee for non-retaliatory reasons (such as inability to work or indefinite absence) even if the employee is receiving workers’ compensation benefits.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-6751.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. 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.

Sixth Circuit: Another Employer Victory in Limiting Retaliation Claims.

Employers often feel powerless to defend themselves against employees who grouse about the employer to anyone who will listen, particularly after the employee files a lawsuit alleging illegal employment discrimination. However, today, a unanimous Sixth Circuit reminded employers that not all complaints made by an employee are protected by the federal employment laws. Fox v. Eagle Distributing Co., No. 07-5203 (6th Cir. 12/14/07).

In Fox, the plaintiff filed an age discrimination lawsuit against the employer and then bragged to a customer that upper management had been “out to get him” and that he had filed a $10M lawsuit that “would get their attention.” The customer reported the plaintiff’s statement back to his immediate supervisor and, after a more thorough investigation, the plaintiff was eventually fired. Not surprisingly, the plaintiff then alleged that his termination was illegal retaliation for engaging in protected conduct by protesting the employer’s unlawful treatment of him in his conversation with the customer. However, the Sixth Circuit agreed with the trial judge that the plaintiff’s misconduct in complaining to a customer about his employer was not protected by federal employment laws.

The court found that the plaintiff’s “statements to [the customer] are not protected because they did not amount to opposition to an unlawful employment practice by [the defendant employer]. In order to receive protection under the ADEA, a plaintiff’s expression of opposition must concern a violation of the ADEA.” The plaintiff’s complaints to the customer were too vague to constitute opposition to an unlawful employment practice. In fact, there was no evidence that the plaintiff had ever referred to age discrimination implicitly or explicitly. A “vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.” While the plaintiff had referred to a “$10M lawsuit,” he never mentioned that the basis of his lawsuit was age discrimination. The plaintiff’s “vague charge that [the employer’s] management was ‘out to get him’ is insufficient to constitute opposition to an unlawful employment practice and does not merit ADEA protection.”

Insomniacs can read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/075203p.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. 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.