03/20/2024: Offensive Statements After Discharge Do Not Preclude Reinstatement.
You can say some wild stuff if you are illegally fired.
Trustees of the University of Pennsylvania, 04-RC-327396 (Regional Election Decision). UAW seeks to represent a unit of graduate students employed by UPenn to perform research or instructional services, including Graduate Educational Fellowship Recipients (EFRs) in their first two years of study when doing lab rotations. The problem is that, in a 2017 representation petition, the UAW agreed to stipulate that the EFRs were not statutory employees. Because of this stipulation, the UAW is precluded from presenting the issue of whether the EFRs are statutory employees. Accordingly, the regional director directed an election that does not include the EFRs in the unit.
Transdev North America, Inc., 32-RM-332687 (Regional Election Decision). The teamsters represent an existing unit of drivers, dispatchers, and service workers and wish to add customer service representatives (CSRs) to that unit via a self-determination election. The regional director applied the Warner-Lambert standard for determining the appropriateness of such an election — (1) the employees sought to be included share a community of interest with unit employees and (2) they “constitute an identifiable, distinct segment so as to constitute an appropriate voting group” — and concluded that it was appropriate. Thus, the regional director directed an election.
United Parcel Service, Inc., 372 NLRB No. 158, 06-CA-143062 (Published Board Decision). A UPS worker participated in a “Vote No” campaign to reject parts of a collective-bargaining agreement (CBA) that the UPS and the Teamsters were trying to get ratified by the members. The UPS fired the worker nominally for job performance reasons. The discharge was grieved and taken to a UPS-Teamsters grievance panel, which upheld the discharge. In this case, the Board determined that it would not defer to the decision of the grievance panel because the proceedings were not “fair and regular” as required by the Spielberg post-arbitral deferral standard. Specifically, it found that the grievance panel had conflicts of interest in that every member of the panel, including the Teamsters members, had been involved in negotiating the CBA and wanted it to be ratified. After refusing to defer to the grievance panel’s decision, the Board found that UPS had actually fired the worker for his participation in the “Vote No” campaign not for job performance and ordered reinstatement and backpay. Four months after he was fired, the worker posted disparaging things on Facebook about his managers. UPS tried to argue that this post-discharge conduct made him ineligible for reinstatement. The standard for evaluating that (Fund for Public Interest) is whether the “misconduct [is] so flagrant as to render [the worker] unfit for further service, or a threat to efficiency in the plant.” The statements were not deemed to be that flagrant and so reinstatement was deemed appropriate.
The standard for whether offensive post-discharge statements render someone ineligible for reinstatement is a lot more lenient than the standard for whether offensive statements made while employed would make someone unprotected from termination. The rationale for this is that employers who break the law should not be able to escape the consequences just because the victims of their illegal actions have “natural human reactions to unlawful acts,” i.e. say some really angry stuff.
The statements in question here were:
Atkinson called McCready a “knuckle dragger” who “sounds like he’s chewing on cotton balls and marbles” when he speaks, described Eans as sitting in a “dainty and effeminate way,” and speculated that Eans had erectile dysfunction.
It is understandable that someone fired for engaging in protected activity might get mad and say stuff like this. The Board is not going to allow an employer to provoke a worker by illegally firing them and then point to the reaction of the provoked employee to argue that they don’t have to reinstate them.