In the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB. If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected activities, it is found to be unlawful. These types of cases are vexing. if only because typically the violations are found apart from any actual protected activity, let alone evidence that employees read and were aware of the policy.
In an unusual twist, a three-member panel of the NLRB recently found that a union steward’s threat that employees who complain could be disciplined or discharged under the employer’s rules violated the Act. In GCC-IBT Local 137C (Offset Paperback MFRS., Inc.), 359 NLRB. No. 22 (November 27, 2012), the Board was confronted with a situation where employees at a unionized facility complained about workplace issues to their union representatives, and were threatened with punishment for doing so.
The case initially involved twenty employees who protested a temporary reassignment by filing individual grievances. The union then consolidated the grievances into a single “class action” as they appeared to involve the same event. One of the employees, a female, complained about the presence of temporary employees at the facility when bargaining unit members were on layoff. The female employee was warned by the union president that her continued complaints would result in her removal from the class action grievance. This action was found to violate Section 8(b)(1)(A) of the Act because, as the Administrative Law Judge noted, the union president’s “threat was directly aimed at stifling [the employee-member's] complaints regarding the diversion of bargaining unit work to temporary employees.”
More significantly, two employees, including the female who complained about the temporary employees, also complained about the perceived favorable treatment of an employee described as “a former supervisor and union member whose parents were, until recently, officials with the Union’s parent organization….” Specifically, these employees complained that the employee in question was allowed to work hours “that were different from others on the day shift.” In response to these complaints, the elected chapelperson of the department (essentially a union steward), also an employee of the company, held two shift meetings to “discuss harassment among the employees.” At these meetings, the chapelperson distributed copies of the company’s handbook and the union’s oath. The chapelperson told “the attendees that they could not harass, intimidate, coerce, talk about or call other employees, names and could be fired for intimidating or harassing employees.” The chapelperson noted that “members were not to speak at any time with temporary employees about union business, as they were not union members.” Each meeting was concluded by the chapelperson stating that if some employees were not satisfied with his performance, they should vote as whether to retain him. A tally of the votes from both meetings was 33 to 3 in favor of retaining the chapelperson.
The Administrative Law Judge, affirmed by the Board, found that the chapelperson’s conduct violated Section 8(b)(1)(A) of the Act because his remarks would have a reasonably tendency to restrain or coerce employees in the exercise of their statutory rights. Specifically, the Administrative Law Judge noted there was no evidence supporting the reason for the meeting other than employees complaining:
All of the activities prohibited by [the chapelperson]… constituted protected concerted activities protected under Section 7 of the Act. Aside from [the chapelperson's] vague contention that he was simply attempting to quell conflicts among employees in the prep department, there was no credible evidence that this was actually happening. There was no evidence of concern, much less a verbal or written complaint, hinting at such conflict by management, [the employee who allegedly received favorable treatment] or any of the temporary employees. Nor was there any credible evidence in the form of a written Company rule that employee-members were not to discuss union related matters while working. The only credible evidence of adversity was that [the two complaining employees] were complaining to [the union] about [the former supervisor] and temporary employees performing bargaining unit work.
The Administrative Law Judge also noted that the vote to retain the chapelperson, although not alleged as unlawful, “could be reasonably seen as buttressing his strong arm tactics at each of the meetings, including the coercive statements.”
An interesting decision because the chapelperson’s citation to the company rules (which, for a change, were not at issue) was coercive because of his direct threat that talking about complaints in the workplace would subject employees to disicipline.