Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds, (2015)

Docket Number:13-CA-117018
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds and Local 743, International Brotherhood of Teamsters. 13–CA–117018

August 4, 2015

DECISION AND ORDER

BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN

On June 5, 2014, Administrative Law Judge Arthur J. Amchan issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 only to the extent consistent with this Decision and Order.

This case centers on an employer’s reaction to an employee’s act of posting a written disciplinary warning. Specifically, the General Counsel alleged that the Respondent violated Section 8(a)(1) of the Act by threatening employee Frederick Allen Moss with a 3-day suspension unless he removed a written disciplinary warning that he had posted in his work area. The General Counsel further alleged that this conduct separately violated Section 8(a)(1) inasmuch as the Respondent orally promulgated an unlawful work rule of general application. The judge declined to find either alleged violation and dismissed the complaint. We reverse the judge and find both violations for the following reasons.

  1. FACTS

    The Respondent administers the health, welfare, and pension plans for various employers. For the past 21 years, Moss has worked in the Respondent’s call-in center, where he answers telephone inquiries by fund participants. Department Manager Cynthia McGinnis has supervised Moss for the past 7 years. The parties stipulated that McGinnis is both a statutory supervisor and an agent of the Respondent.

    During a meeting on June 12, 2013,2 Moss apparently failed to stop using a tablet (or similar electronic device)

    1 We have amended the judge’s Conclusions of Law consistent with our findings here.

    2 All dates refer to 2013 unless otherwise indicated.

    when McGinnis told him to do so. On June 13, McGinnis held a disciplinary meeting with Moss, Union Steward Rick Delgado, and another supervisor. At this meeting, McGinnis issued Moss a written warning based solely on Moss’s alleged failure to comply with her directive to put his tablet away. Immediately after this meeting, Moss discussed the warning with Delgado, and, the following day, Moss showed the warning to several other employees. Thereafter, he laminated the written warning and posted it in his cubicle, next to his computer. The laminated warning was visible to other employees entering his cubicle or standing at the entry to the cubicle. The Union filed a grievance concerning the warning on July 2.3

    The Respondent and the Union held a grievance hearing on August 15 concerning the July 2 grievance. In attendance were Director of Participant and Field Services William Schaefer, Director of Human Resources Scott Robbins, and McGinnis, as well as Moss, Union Business Agent Catherine Schutzius, and four union stewards (including Delgado). During the grievance hearing, McGinnis complained that Moss was being disrespectful and insubordinate to her by posting the written disciplinary warning. Schaefer interjected and told Moss that if he did not remove the warning from where he posted it, then Schaefer would suspend Moss for 3 days. The Union advised Moss to comply with Schaefer’s demand. Moss went to his cubicle and took down the written warning.

  2. ANALYSIS

    1. The Threat to Discipline Moss

      As the Supreme Court has stated, the Board has long “recognized the importance of freedom of communication to the free exercise of organization rights.” Central Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972) (citations omitted); see also Westside Community Mental Health Center, 327 NLRB 661, 666 (1999) (quoting Central Hardware and finding unlawful an overbroad confidentiality rule prohibiting employees from discussing their discipline with coworkers). Following from this principle, the Board has found that “[i]t is important that employees be permitted to communicate the circumstances of their discipline to their coworkers so that their colleagues are aware of the nature of discipline being imposed, how they might avoid such discipline, and matters which could be raised in their own defense.” Phillips Electronics North America Corp., 361 NLRB No. 16, slip op. at 2 (2014) (quoting Verizon Wireless, 349

      3 The parties stipulated to this date, and the grievance itself is dated July 2. Therefore, we conclude that the judge erred in finding that the grievance was filed on June 13.

      2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

      NLRB 640, 658 (2007) (finding 8(a)(1) violation where employer created overbroad rule by prohibiting an employee from speaking with coworkers about a written disciplinary warning under pain of further discipline or discharge)). As a result, the Board has consistently held that “[a]n employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification.” Phillips Electronics, 361 NLRB No. 16, slip op. at 2 (citing Lucky Cab Co., 360 NLRB No. 43, slip op. at 7 (2014); SNE Enterprises, 347 NLRB 472, 491–492 (2006), enfd. 257 Fed.Appx. 642 (4th Cir. 2007); Caesar’s Palace, 336 NLRB 271, 272 (2001)). Where an employer asserts a legitimate and substantial business justification, the Board then considers whether employees’ interests in exercising their Section 7 rights outweigh the employer’s asserted justification. Caesar’s Palace, 336 NLRB at 272.

      In the instant case, the Respondent issued a written disciplinary warning to Moss, who then grieved it, shared it with his coworkers, and discussed it with them. He also posted the warning. The judge found, in agreement with the Respondent, that the posting was neither protected nor concerted whether viewed in isolation or in conjunction with Moss’ grievance and prior discussion with other employees. We need not decide whether the posting of a disciplinary warning, standing alone, would in other circumstances constitute protected concerted activity. Here, it is clear that the posting of the warning was related to other means of communicating with other employees about it. In accord with the...

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