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The Labor & Employment Report

Shutting Off the Radio: Not Animus Towards Protected Concerted Activity

Posted in Labor Law & NLRB

The Livin Spoonful case is perhaps the funniest ALJ decision I have read in a LONG time.   This is the latest in the protected concerted activity train under the National Labor Relations Act.

The story involves a “gluten-free” “artisan” cracker company from Portland, literally based out of owner Brousseau’s kitchen and garage.  The company contributes food to Occupy Portland, Brousseau hires people via coffee shops, the employees listen to Marxist and “left-wing” talk radio all day, the employees are voluntary members of the Wobblies Union even when they are unemployed, and the “disciplinary” system’s first step starts with the premise that “mistakes are unintentional.”

But like all workplace utopias, this social experiment goes awry.  For starters, Brousseau hires Mr. Kohut and pays him 50 cents more per hour than some other employees.  Then, one day, while listening to Marxist radio, there arises a controversy because Kohut and some others espouse the belief that all workers are exploited, which hurts Brousseau’s feelings since he doesn’t think he is exploiting anyone.   A bunch of other events eventually transpire between him and Kohut (including letters, meetings, group protests) ending up with a big blow-up at work one day.  Brousseau, admittedly losing his cool, responds with a raised voice that they are not equals.  He then explains that they are equal as human beings but not in the workplace because he owns the business and has different responsibilities and liabilities.  To this, one employee said she now felt “unsafe” at work and Kohut suggested that a mediation was necessary.

Brousseau decides not to mediate and just terminates Kohut, having enough of him and his antics.  This leads Kohut to file an unfair labor practice (ULP) charge and the current case.  The Acting General Counsel (AGC) of the NLRB argued that Brousseau exhibited animus towards his employees’ protected concerted activity, in violation of the National Labor Relations Act.

But luckily, the story has a happy ending (for the now evil business owner).   The Administrative Law Judge (ALJ) who decided the ULP charge found that even though there was protected concerted activity, there was no animus towards the activity, citing all of the various benefits the business owner provided for his employees that were unappreciated (including, for instance, starting a maternity leave program when Kohut and his wife had their first child).   The ALJ takes the General Counsel to task for animus examples that “stretch the bounds of reasonableness.”

One such example was Brousseau turning off talk radio when his 9-year old daughter—named Persephone (who names their child Persephone?  Persephone is the goddess of the underworld for crying out loud!)—came into the room.  The Acting General Counsel argued with a straight face that turning off the radio was a sign of animus towards protected concerted activity – really.   The ALJ finally let it rip –

I likewise do not find animus based on Brousseau turning off the radio in early March.  His 9-year-old daughter Persephone came into the kitchen when the program was “getting to like the good juicy part” about why the administration “thought they could kill people.” To imply 35 animus based on this action is miles outside the bounds of reasonableness. The Acting General Counsel asserts that the short-lived rule that the employees could not listen to talk radio in the kitchen is suspicious because Persephone historically came into the kitchen every now and then for short periods of time. There was no evidence, however, that she was on the verge of hearing an explanation of targeted killings. Moreover, any inference of animus based on the rule is negated by Brousseau’s willingness a few days later, at Phillips’ request, to listen to talk radio with political content while Persephone was at school.

It’s a sad state of affairs when a 9-year old becomes the center of a ULP charge.