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Labor Relations News Update June 24, 2014

Today’s Labor Updates:

NLRB General Counsel Says Employees Have Right to Use Employer E-Mail Systems for Union Organizing

Does the NLRB believe it’s an “überagency?”


NLRB General Counsel Says Employees Have Right to Use Employer E-Mail Systems for Union Organizing

6/20/2014 By Paul Derrick

On Monday, the National Labor Relations Board’s General Counsel filed a brief asking the Board to rule that employees have a protected right to use their employer’s internal e-mail system for union organizing.  The Board’s current position is that employers may lawfully maintain a rule prohibiting such use.

According to NLRB General Counsel Richard F. Griffin, himself a longtime lawyer for the International Union of Operating Engineers and director for the AFL-CIO Lawyers Coordinating Committee, however, that position is based on outdated notions that ignore the realities of the modern workplace:  “Employees who use their employer’s electronic communications systems to perform their work have a statutory right to use those systems for Section 7 purposes during nonwork time, absent a showing of special circumstances relating to the employer’s need to maintain production and discipline.”

Since being sworn in as the NLRB’s General Counsel in November 2013, Mr. Griffin has made it clear that part of his agenda is to overturn prior precedent so that employees are free to use company e-mail systems for union organizing activity, as well as other concerted activities.

The General Counsel’s brief can be found here.  Workplace Update will bring you new developments in the case, Purple Communications, as they arise.


Does the NLRB believe it’s an “überagency?”

June 23, 2014

Employment Law Alert

Author(s): Alexandra Devendra, Kent Jonas

In a recent two-to-one decision, the National Labor Relations Board (the “Board” or the “NLRB”) held that it was an unfair labor practice for a used-car dealership to terminate a salesman who personally denigrated the owner to his face, using multiple obscenities and threatening that he would “regret it” if he fired him. According to the majority, that conduct was still protected by the National Labor Relations Act (the “Act”) because employees must be given “some leeway for impulsive behavior.” More recently, the Board had an opportunity to devise a different standard that would apply when such outbursts occur in front of the employer’s customers (in this case, at a Starbucks). Instead, the Board avoided the issue.  We may receive more “guidance” on these issues later this summer when the Board is set to review an administrative law judge’s decision finding unlawful a Hooters restaurant handbook policy that bans insubordination and disrespect toward co-workers and customers.

These three recent decisions are analyzed below. All employers—whether their workforce is unionized or not—should review these cases for a better understanding of how the Board is changing the ways in which they can deal with problem employees.

Used-car dealership cannot fire salesman for profane outburst that personally denigrated the owner.

In May, the Board issued a supplemental decision and order in Plaza Auto Center, Inc., which had been sent back to it for further consideration by the Ninth Circuit Court of Appeals. The Plaza Auto Center case involved a used-car salesman, Nick Aguirre, whose employment was terminated after only two months. Aguirre was called into a meeting with two sales managers and the company’s owner, Tony Plaza. Plaza did not intend to fire Aguirre at the beginning of the meeting, but began by admonishing Aguirre for “talking a lot of negative stuff” to the rest of the sales force and asking too many questions (about vehicle costs, commissions, and minimum wage). Plaza said that if Aguirre didn’t trust the company, he could work elsewhere. Aguirre lost his temper, pushed his chair aside and called Plaza a “f***ing crook” and an “a**hole” (among other things). Aguirre also said that if Plaza fired him, Plaza would regret it. Plaza then fired Aguirre.

Because Aguirre’s questions about wages and working conditions were protected by the Act, the administrative law judge applied the Board’s traditional factors to determine whether Aguirre’s outburst caused him to lose the protection of the NLRA. Those four factors are the place of the discussion, the subject matter of the discussion, the nature of the outburst, and employee provocation by unfair labor practices. The ALJ held that although Aguirre was engaged in protected activity during the meeting, he lost the protection of the Act by his “belligerent” behavior of repeatedly reviling Plaza “in obscene and personally denigrating terms accompanied by menacing conduct and language.”

However, the Board itself concluded that Aguirre’s conduct was not so severe as to cause him to lose protection of the Act. The case then went to the Ninth Circuit, which disagreed with the Board regarding the nature-of-the-outburst factor. The court found that Aguirre’s obscene and personally denigrating remarks to Plaza were insubordinate and counted against Aguirre’s retaining the Act’s protection.

The case then went back to the Board. It first held—remarkably and in disagreement with the ALJ, its trier of fact—that Aguirre’s outburst was not menacing, physically aggressive, or belligerent. The Board asserted that it uses an “objective” standard in analyzing Aguirre’s conduct, meaning that Plaza’s testimony that he feared for his safety and the safety of his employees was not determinative. The Board found that Aguirre’s rising and pushing aside his chair was not menacing, physically aggressive, or belligerent. The room was small, so it would have been hard to stand up without pushing aside one’s chair. Moreover, Aguirre did not try to hit Plaza when he rose, or even make a fist, nor did Aguirre have a history of violent or threatening behavior. The Board found Aguirre’s comment that Plaza would “regret it” if he fired Aguirre was ambiguous and likely referred to legal consequences as opposed to physical harm (pointing to the fact that Aguirre had previously contacted a state agency regarding his minimum-wage question).

The Board then applied the other three factors and held that Aguirre did not lose the protection of the Act, even though the nature of his outburst weighed against protection due to his use of obscene and personally denigrating language. The three remaining factors weighed heavily in Aguirre’s favor: (1) the outburst occurred in private, away from other employees; (2) the meeting concerned Aguirre’s concerted complaints about terms and conditions of employment; and (3) Plaza provoked Aguirre by saying that Aguirre could work elsewhere if he didn’t like the company’s policies—which was an implied threat of discharge.

While the Board claimed to give “considerable weight” to the nature of Aguirre’s outburst because it was face-to-face, targeted Plaza personally, and contained multiple obscenities, it nonetheless was able to conclude that employees must be given “some leeway for impulsive behavior” because disputes over working conditions are likely to engender strong responses. It concluded, based on its own “expertise” that, “the language of the workplace is not the language of polite society” and “the realities of industrial life” must be taken into account.

The dissenting member of the panel argued that the majority is out of touch with reality: “The reality of the modern workplace is that employees do not typically curse each other and their superiors like characters in a Scorsese film. It is entirely reasonable, and to a great extent legally necessary, for many employers to insist that employees engage each other with civility rather than personally directed f-bombs even on matters where opinions differ sharply and emotions flare. There is no evidence that profane outbursts like Aguirre’s were common at Plaza Auto Center.” The dissenting member also pointed out that in today’s workplace, it is essential for employers to proscribe profane behavior that could under other employment laws be viewed as harassing, bullying, creating a hostile work environment, or a warning sign of workplace violence: “The Board is not an ‘überagency’ authorized to ignore those laws in its efforts to protect the legitimate exercise of Section 7 rights in both unrepresented and represented workforces.”

It is unclear whether the outcome should be different when the outburst occurs in front of customers.

In June, the Board issued a supplemental decision and order in Starbucks Corp. d/b/a Starbucks Coffee Co., on remand from the Second Circuit. The Starbucks case involved a pro-union barista, Joseph Agins. On one occasion, Agins became angry because the assistant store manager did not immediately provide assistance when the store became busy. When she did come to help, Agins said it was “about damn time.” He nosily shoved a blender in the sink and said, “This is bulls***.” Agins told the assistant store manager to “do everything your damn self,” at which point she ordered him to punch out. Agins was suspended for several days and Starbucks prepared a written warning stating that if the behavior was repeated, it would result in termination. Agins claims he never received this warning.

Six months later, Agins and other employees came to the store while off duty to protest the district manager’s prohibition on wearing union pins. An off-duty assistant manager from a different Starbucks store was there as a customer and confronted Agins about his union pin. The conversation escalated into a heated confrontation during which both men spoke loudly and used hand gestures and obscenities. Agins told the assistant manager, “You can go f*** yourself, if you want to f*** me up, go ahead, I’m here.” A few weeks later, Starbucks terminated Agins’s employment, purportedly for disrupting business the day of the protest. The discharge memo stated that Agins was ineligible for rehire because “[p]artner was insubordinate and threatened the store manager. Partner strongly support[s] the IWW union.”

The administrative law judge found that Agins’s conduct was not so egregious as to lose him the protection of the Act. The Board agreed. On review, however, the Second Circuit concluded that the traditional tests do not apply when an employee uses obscenities in the presence of the employer’s customers. The court stated that those tests were formulated in the context of employee outbursts on the factory floor or in a backroom office, where the primary concern is whether the outburst would impair employer discipline. The court remanded the issue to the Board, stating that the Board should decide what standard to apply when an employee utters obscenities in the presence of customers when discussing employment issues.

But the Board did not decide what standard should apply when customers are present. Instead, the Board found that even if Agins’s conduct on the day of the protest cost him the protection of the Act, the termination of his employment was still unlawful because it was motivated in part by his pro-union activities, which were clearly protected.  In a concurring opinion, one of the panel’s members pointed out that the Second Circuit had remanded the case specifically for the Board to decide what standard should be used in the retail industry and that the Board had failed to do so. The concurring member argued that the standard from Restaurant Horikawa[1] should apply—that is, retail employees lose the Act’s protection if their conduct causes disruption of or interference with the business (regardless of whether the employee is off duty).

This summer the Board will review an ALJ’s decision finding unlawful a handbook policy that bans insubordination and disrespect toward co-workers and customers.

Regardless of the standard applied in the retail and restaurant industries, the way in which the employer communicates that standard to its employees can also cause problems, as illustrated by a recent ALJ decision. In Hoot Winc, LLC, the ALJ considered waitress Alexis Hanson’s complaint that she was unlawfully discharged after complaining that the restaurant’s bikini contest was rigged both before the contest and on the night it took place. After the contest, Hanson and another waitress, Chanelle Panitch, confronted the winner about cheating. One, and perhaps both, used profanity. Management and security were involved, and ultimately the police were called to the restaurant. As a result of the incident, Hooters conducted an investigation and discharged both Hanson and Panitch.

Hanson’s discharge notice cited three types of conduct prohibited by the Hooters handbook: (1) acts of violence, threats of violence, dishonesty toward guests or fellow employees; (2) insubordination to a manager or lack of respect and cooperation with fellow employees or guests; and (3) off-duty conduct that negatively affects, or would tend to negatively affect, the employee’s ability to perform his or her job, the company’s reputation, or smooth operation, goodwill or profitability of the company’s business. At the hearing, however, the Hooters HR manager testified that the sole reason for Hanson’s discharge was her cursing at a coworker in front of guests. The ALJ found that Panitch, and not Hanson, had sworn after the contest. Accordingly, the ALJ held that Hanson’s discharge was unlawful.

The ALJ went on to hold that several provisions of the Hooters handbook were themselves unlawful. The ALJ found that the prohibition on insubordination was illegal because employees could reasonably construe it as prohibiting protected activity; there was no limiting language or examples given to clarify that the rule does not restrict rights protected by the Act. The ALJ contrasted the Hooters language with language used in a hotel’s handbook, which was upheld: “Being uncooperative with supervisors, employees, guests and/or regulatory agencies or otherwise engaging in conduct that does not support the Lafayette Park Hotel’s goals and objectives.”[2].  The ALJ also found the Hooters policy prohibiting “[d]isrespect to our guests including … profanity or negative comments or actions” to be overbroad, again because no examples or clarifications were provided.

If the Board upholds this decision, it will be another step toward making the drafting of policies to comply with the Act an art form increasingly unconnected to workplace reality. For instance, it is not apparent how the language in the Lafayette Park Hotel’s prohibition on insubordination clarifies that Section 7 rights are not restricted, and adding examples could be found to mean that the policy does not forbid conduct it doesn’t list.

Taken together, these decisions are examples of the Board’s ever greater intrusion into new areas and its growing body of law limiting employers’ ability to manage their workforces. They emphasize, again, the need for careful review of personnel policies and of disciplinary actions that have long been considered routine.

  1. G.T.A. Enterprises, Inc. d/b/a Restaurant Horikawa, 260 NLRB 197 (1982).
    [Back to reference]
  2. Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
    [Back to reference]

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