Today’s Labor Updates:
Summary of NLRB Decisions for Week of September 22 – 26, 2014
Canada: The Ray Rice scandal and off-duty misconduct: when does off-duty mean off-limits?
Summary of NLRB Decisions for Week of September 22 – 26, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs atPublicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.
Summarized Board Decisions
Purple Communications, Inc. (21-CA-095151, 21-RC-091531 and 21-RC-091584; 361 NLRB No. 43) Corona and Long Beach, CA, September 24, 2014.
In this consolidated representation and unfair labor practice case, a panel of the Board addressed the Respondent’s employee handbook rule prohibiting disruptions on its property and several statements made by the Respondent’s president and CEO, John Ferron, in speeches to employees shortly before elections at its Corona and Long Beach facilities. The Board adopted the judge’s findings that the broad no-disruptions rule was both unlawful and objectionable and that Ferron’s statement at Long Beach that he could improve employees’ working conditions only at facilities that did not have elections pending was objectionable. Based on those findings, the judge had set aside only the Long Beach election.
The Board, however, found that the judge had erred in his assessment of other statements by Ferron. Considering the statements under the established standard applicable to objectionable conduct and from the perspective of the listening employees, the Board concluded that Ferron also made objectionable implicit promises of benefits (regarding improvements in the productivity standards to which employees were held) and implicit threats of lost bonuses (because of the Respondent’s spending on its antiunion campaign). The Board found that those implied threats and promises and the overbroad no-disruptions rule, considered either separately or in the aggregate, would have affected employees’ free choice in the elections at Corona and Long Beach. Thus, the Board set aside both elections, as well as ordering the Respondent to rescind its no-disruptions rule.
Finally, the Board severed and retained for further consideration issues related to the Respondent’s electronic communications policy. On April 30, 2014, the Board had issued a Notice and Invitation to File Briefs regarding whether the Board should reconsider its conclusion in Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”
The charge and petitions were filed by Communications Workers of America, AFL-CIO. Administrative Law Judge Paul Bogas issued his decision on October 24, 2013. Chairman Pearce and Members Hirozawa and Schiffer participated.
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D2 Abatement, Inc. (14-CA-106806; 361 NLRB No. 51) Kansas City, MO, September 24, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement. The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to submit its scheduled installment payment to the Region. Applying the noncompliance provisions of the settlement agreement, the Board deemed all of the allegations in the reissued complaint to be true.
The Board ordered the Respondent to comply with the remaining unmet financial terms of the settlement by reimbursing employees for the remaining balance of their medical expenses, immediately and in full along with any additional fees or expenses incurred by the employees based on the Respondent’s failure to comply with the terms of the settlement agreement, with interest.
Charge filed by Teamsters Local 838, affiliated with International Brotherhood of Teamsters.
Members Miscimarra, Hirozawa, and Johnson participated.
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Mike-Sell’s Potato Chip Co. (09-CA-072637; 359 NLRB No. 86) Dayton, OH, September 24, 2014. Correction to March 19, 2013 decision. correction — amended decision.
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Livin’ Spoonful, Inc. (19-CA-084278; 361 NLRB No. 52) Portland, OR, September 26, 2014.
The Board adopted the judge’s dismissal of an allegation that the Employer discharged one of its employees in violation of Section 8(a)(1) of the Act. Administrative Law Judge Eleanor Laws issued her decision on August 26, 2013. The charge was filed by Adam Kohut, Portland Industrial Workers of the World General Membership Branch. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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American Medical Response of Connecticut, Inc. (34-CA-013051 and 065800; 361 NLRB No. 53) West Hartford, CT, September 26, 2014.
The Board agreed, for the reasons stated in the vacated Decision and Order reported at 359 NLRB No 144 (2013), with the administrative law judge’s finding that the respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the union about a change to its start-of-shift procedures and violated 8(a)(1) of the Act by discharging a union steward. With respect to the unilateral change allegation, the vacated decision explained that the respondent unilaterally changed from non-enforcement to strict enforcement of its procedures without bargaining. With respect to the unlawful discharge allegation, the vacated decision explained that, under NLRB v. Burnup & Sims, 379 U.S. 21 (1964), the General Counsel showed that the union steward did not actually engage in the alleged misconduct of initiating an unlawful work stoppage.
Charges filed by individuals. Administrative Law Judge Raymond P. Green issued his decision on November 20, 2012. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Klochko Equipment Rental Company, Inc. (07-CA-131088; 361 NLRB No. 49) Melvindale, MI, September 26, 2014.
Test of Certification: The Board granted the General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative.
In granting the motion, the Board rejected the Respondent’s argument that the Board should deny the motion based on its recent decision in The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 NLRB No. 11 (2014) (unit combining salespersons of women’s shoes in two different departments is not appropriate), which issued after the conclusion of the representation proceedings below. The Respondent argued that the Board’s analysis in that case supported its argument that the unit certified in the underlying representation proceeding was not appropriate, and maintained that the Board had emphasized the importance of the frequency of interchange among employees in finding community of interest. The Board found that even assuming arguendo that the Respondent correctly characterized the Board’s treatment of that factor in The Neiman Marcus Group, the Regional Director considered the degree of interchange between the Saginaw and Melvindale employees, along with other appropriate factors, in determining that a unit combining the Saginaw and Melvindale voting groups was appropriate. The Board further noted that if the employee in the Saginaw voting group was not included in the unit, he would constitute a one-person residual unit and would be foreclosed from exercising his Sec. 7 right to representation. See, e.g., Vecellio & Grogan, 231 NLRB 136, 136-137 (1977); Victor Industries Corporation of California, 215 NLRB 48, 49 (1974).
Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Matson Terminals, Inc. (20-CA-132200; 361 NLRB No. 50) Honolulu, HI, September 26, 2014.
Test of Certification: The Board granted the General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative. Charge filed by Hawaii Teamsters & Allied Workers Union, Local 996. Chairman Pearce and Members Johnson and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Pac Tell Group, Inc. d/b/a U.S. Fibers (10-RC-101166) Trenton, SC, September 22, 2014. Decision on Review and Order affirming the Regional Director’s Supplemental Decision and Certification of Representative. On March 13, 2014, the Board granted review of the Supplemental Decision with respect to whether the putative supervisors were statutory supervisors based on their authority to assign and reward. Having carefully examined the entire record and the briefs on review, the Board decided to affirm the Regional Director for the reasons stated in his decision. The Board also found that the alleged conduct of two of the putative supervisors—consisting of statements suggesting that employees might lose their jobs if they did not support the union—was not, as the Employer contended, objectionable under the Board’s standard for third-party conduct. Petitioner—United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7898. Chairman Pearce and Members Hirozawa and Johnson participated.
Allied Waste Services of North America, LLC d/b/a Allied Waste Services of Sacramento and Republic Services of Sacramento (20-RC-133841) Sacramento, CA, September 23, 2014. Order granting Employer’s request for special permission to appeal the Regional Director’s direction of a mail ballot election and letter setting forth the election arrangements, and denying the appeal on the merits inasmuch as the Employer failed to establish that the Regional Director abused his discretion. Member Johnson would grant the appeal on the merits. Petitioner—International Union of Operating Engineers, Stationary Engineers, Local 39. Members Hirozawa, Johnson, and Schiffer participated.
Prince-Simms, Inc. d/b/a Toyota Sunnyvale (32-RC-131233) Sunnyvale, CA, September 26, 2014. No exceptions having been filed to the Regional Director report on the disposition of objections to an election held July 24-25, 2014, the Board adopted his findings and certified the results of the election that a majority of the valid ballots were cast for Machinists Automotive Trades Local 1101, District Lodge 190, International Association of Machinist & Aerospace Workers, AFL-CIO and that it is the exclusive collective-bargaining representation of the unit employees. Petitioner – Machinists Automotive Trades Local 1101, District Lodge 190, International Association of Machinist & Aerospace Workers, AFL-CIO
C Cases
Fox Television Stations, Inc. (31-CA-109881) September 22, 2014. No exceptions having been filed to the August 12, 2014 decision of Administrative Law Judge Gerald M. Etchingham finding that Respondent did not engage in certain unfair labor practices, the Board adopted his findings and ordered the complaint dismissed. Charges filed by National Ass’n of Broadcast Employees & Technicians, The Broadcasting & Cable Television Workers Sector of the Communications Workers of America, AFL-CIO, Local 53.
Hyatt Corporation d/b/a Hyatt Regency Scottsdale (28-CA-112474) Scottsdale, AZ, September 22, 2014. The Board granted the Joint Motion to Remand Case to the Regional Director for Region 28.
United States Postal Service (10-CA-124089) Duluth, GA, September 26, 2014. Order denying the petition to revoke a subpoena duces tecum filed by American Postal Workers’ Union, AFL-CIO. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena.
Member Johnson would have granted the petition in part by limiting the scope of paragraph 5 to those materials in the possession of the Employer’s supervisors and agents at the Duluth, Georgia facility, or in the possession of supervisors, agents, Media Relations Specialists, and/or Corporate Communications Specialists who were present at union protests that occurred in Georgia in March 2014. He would do so without prejudice to the Region’s right to issue a new subpoena seeking additional information if the information provided by the Employer under the instant subpoena, as limited, was insufficient to resolve the matter at issue and if the Region could establish that a search from a larger set of supervisors and agents was warranted
Members Miscimarra, Hirozawa and Johnson participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Management & Training Corp d/b/a Keystone Job Corp Center (04-CA-18130; JD-56-14) Centerville, UT. Administrative Law Judge Susan A. Flynn issued her decision on September 22, 2014. Charges filed by Service Employees International Union, Local 668.
National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, CLC (United States Postal Service) (16-CB-112283 and 120229; JD(NY)-39-14) Houston, TX. Administrative Law Judge Joel P. Biblowitz issued his decision on September 23, 2014. Charge filed by an individual.
SMI/Division of DCX-CHOL Enterprises, Inc. (25-CA-117090, et al.; JD-55-14) Fort Wayne, IN. Administrative Law Judge Geoffrey Carter issued his decision on September 23, 2014. Charges filed by Indiana Joint Board, Retail Wholesale, Department Store Union, United Food & Commercial Workers Union, Local 835, a/w Retail, Wholesale, Department Store Union, United Food & Commercial Workers Union.
International Union of Operating Engineers Local No. 324 and 324-A, AFL-CIO (Michigan Conveyor Manufacturers Association) (07-CB-109303; JD(NY-41-14) Bingham Farms, MI. Administrative Law Judge Kenneth W. Chu issued his decision on September 23, 2014. Charge filed by Michigan Conveyor Manufacturers Association.
Decker Truck Line, Inc. (27-CA-107239; JD(F)-46-14) Fort Collins, CO. Administrative Law Judge Eleanor Laws issued her decision on September 23, 2014. Charge filed by an individual.
American Elevator Corp., a wholly owned subsidiary of Marla Electric, Inc., and BBQL, LLC, alter egos (19-CA-117057 and 121522; JD(SF)-47-14) Bellevue, WA. Administrative Law Judge Gerald M. Etchingham issued his decision on September 25, 2014.
Edwards Painting, Inc. (19-CA-116399 and 122730; JD(SF)-45-14) Oregon City, OR. Administrative Law Judge John J. McCarrick issued his decision on September 26, 2014. Charges filed by International Union of Painters and Allied Trades, District Council 5, affiliated with International Union of Painters and Allied Trades.
Danite Holdings, Ltd d/b/a Danite Sign Company (09-CA-123404 and 124532; JD-57-14) Columbus, OH. Administrative Law Judge Christine E. Dibble issued her decision on September 26, 2014. Charges filed by Sheet Metal Workers International Association, Local Union No. 24, AFL-CIO-CLC (SMWIA) and International Brotherhood of Electrical Workers, Local Union 683, AFL-CIO-CLC.
International Brotherhood of Teamsters, Local 71 (Pacific 2.1 Entertainment Group, Inc.) (10-CB-114563 and 10-CA-120024; JD (Atl)-27-14) Charlotte, NC. Administrative Law Judge Keltner W. Locke issued his decision on September 26, 2014. Charges filed by individuals.
Canada: The Ray Rice scandal and off-duty misconduct: when does off-duty mean off-limits?
September 26 2014
As an employment lawyer, I thought I’d heard it all when it comes to employees (allegedly) behaving badly. However, in the last month, the news has simmered with stories about employees (and quasi-employees, like NFL players) behaving in ways that shock even the most seasoned employment lawyer. Beyond the personal shock that we have all experienced in reacting to these stories, what makes the Ray Rice, Des Hague and Adrian Peterson situations interesting from an employment law perspective is that they all involve off-duty misconduct that has, to different degrees, resulted in consequences in the workplace.
Even in serious cases of misconduct that occur at work, employers must take care to ensure that they have properly investigated the incident and, in some cases, warned employees before imposing discipline – particularly if that discipline is termination for just cause.
But what about employees who are charged with crimes or engage in inappropriate behaviour outside the workplace? Can an employer terminate employment for misconduct that happens while the employee is off-duty? Or is that activity off-limits?
Although there is limited case law on the subject, the short answer is that employers can impose consequences for their employees’ off-duty misconduct. Even further, courts have held that an employee’s off-duty misconduct may constitute just cause for termination where that misconduct “is incompatible with the due and faithful discharge of his or her duty to the employer”, including where such misconduct is “prejudicial to or is likely to be prejudicial to the interests or reputation of the employer.” (Harrop v. Markham Stouffville Hospital, 1995 CanLII 7295 (ON SC) at pp. 230-231).
Employers must assess, on the particular facts of each case, the seriousness of the misconduct. Whether the misconduct is on-duty or off-duty, courts are loath to permit an employer to rely on a single incident of misconduct (as opposed to an ongoing pattern or multiple incidents) as just cause. However, the courts have held that where the misconduct “interferes with and prejudices the safe and proper conduct of the business of the employer, and has serious consequences…a single incident is sufficient to justify dismissal.”
It cannot be stressed enough that each case must be assessed on its own merits. Whereas an off-duty criminal charge may constitute just cause for termination in one case, it may not in another. Employers must consider the seriousness of the misconduct and its impact (both real and potential) on the workplace.
By way of very general guidelines, the following types of off-duty misdeeds may (but not necessarily will) give rise to just cause for termination:
- where there are identifiable negative consequences on the work environment (e.g. a supervisor at a trucking company, who is responsible for monitoring drivers, has admitted to multiple reckless driving offences and thus has lost credibility as a supervisor);
- where the consequences of the misconduct hinder the employee from performing his or her job duties (e.g. as part of his temporary bail conditions, an IT employee is not permitted to access a computer without supervision); and
- where the employer’s reputation will suffer permanent and irreparable harm in the community by continuing to employ the employee (e.g. a client and supplier-facing manager at an employer that has a “special emphasis on philanthropy directed towards young children” is charged with possessing child pornography and the charge is reported in the media). {Kelly v. Linamar Corporation, 2005 CanLII 42487 (ON SC)}
As in any disciplinary situation, employers must also consider the employee’s history, his or her length of service, any Human Rights Code issues, the employer’s past practice regarding off-duty misconduct, and other workplace-specific factors before taking any punitive steps.
Tips for Employers
There is no one-size-fits-all approach to dealing with off-duty misconduct and its impact on the workplace; but the following tips can be helpful for employers who face these situations:
- No Double Jeopardy: As Roger Goodell can attest, an employer should conduct thorough, impartial investigations and make disciplinary decisions with the full spectrum of facts and sound legal advice at their disposal. It is difficult and, in some cases impossible, to “step up” the discipline after it has already been imposed.
- Good PR vs. Costly Legal Implications: In response to public outcry following a video showing its CEO, Des Hague, allegedly abusing a dog, Centreplate placed Mr. Hague on an indefinite suspension and ordered him to donate $100,000 to charity. Mr. Hague ultimately resigned from his position, likely as part of an agreement with Centreplate, and so the legal implications were neutralized. Employers should recognize that although it may be desirable from a public relations perspective to come down hard on a misbehaving employee, this will not always be a legally sound course of action. An employer’s knee-jerk reaction to appease public outrage can lead to an expensive wrongful dismissal claim by the employee, which can, in itself, attract additional negative PR.
- The Spectrum of Options: Termination is not the only option. Think outside the conventional box of disciplinary options when it comes to responding to an employee’s off-duty transgression. Compelling a public apology or a donation to an appropriate charity may be a more proportionate way to “chasten” the employee.
Dealing with workplace misconduct is never an easy job, but addressing off-duty misconduct can be even trickier. Even employment lawyers like me have learned some new lessons from the headlines over the last month, about what not to do with troubled employees.