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The Labor & Employment Report

A Slap on the Wrist for the NLRB

Posted in Labor Law & NLRB

As an attorney in a management-side labor and employment firm, I am frequently frustrated by the outrageously unfair positions taken by the National Labor Relations Board with regard to completely reasonable employer policies and actions.  My partners down the hall often hear me screaming when the NLRB issues a new work rules opinion that finds the employer, once again, to have violated the National Labor Relations Act over some nitpicky word choice (e.g. “negative” is a problem and “disrespectful” is sometimes OK and sometimes not, “professional manner” is illegal but “ethical manner” is acceptable, etc.).  So I really enjoyed the Administrative Law Judge’s opinion in Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds, in which he chastised the NLRB’s General Counsel by stating, “This is a case that should never have been litigated.”

So what was this case?  Well, an employee was playing with a tablet computer during a meeting.  His supervisor told him to stop, but he refused to do so.  (Sounds like my teenagers).  So, unsurprisingly, she wrote him up for insubordination.  The union then filed a grievance on behalf of the employee.  (Seriously? Does anyone really think this teenage-type of behavior is acceptable in the workplace?).  The employee then laminated the warning and posted it in his cubicle where it could be seen by his fellow employees.  His supervisor was upset by the posting, believing it to be disrespectful and insubordinate.  The employee was told to take down the posting, or he would be suspended for three days.  He complied, but the Union brought an unfair labor practice charge and the NLRB’s General Counsel then filed a complaint claiming that this instruction was a violation of employees’ rights under Section 8(a)(1) of the NLRA to engage in protected concerted activity regarding their terms and conditions of employment.

Fortunately, the ALJ, who appears to be a rational person, shot that down.  He noted that, by posting the warning, the employee was not enlisting the support of his fellow employees or trying to induce group action – either to use electronic devices in business meetings or to protest unfair disciplinary practices generally.  The posting did not advance his grievance “in any way,” according to the ALJ, and did not support any union activity.  The fact that co-workers may have asked the employee about his discipline was idle curiosity, and not a matter of common concern.

The General Counsel argued that management’s threat to impose a three day suspension if the employee did not remove the posting “inhibited other employees to obtain information that could prove useful in challenging discipline they may fac[e].”  The ALJ, easily seeing through the flimsy nature of this argument, noted that the posting itself could not have helped other employees defend themselves in future disciplinary situations.

The ALJ did state that the Company overreacted to the posting, noting that the warning reflected poorly on the employee, not the manager.  It was the ALJ’s opinion that the threat of the suspension was unwarranted.  But, nonetheless, the ALJ found this conduct was so remotely connected to Section 8(a)(1) rights that “the Union should not have filed the charge and the General Counsel should not have issued the complaint.”  The ALJ then quoted the Board’s own language from another case, “The Board’s rising case load and the problems involved in handling it could be alleviated if cases of this type were not processed.”

So there.