05/16/2024: Walmart Violated Act by Telling Employee Not to Discuss Discipline

Also a managerial and confidential employee ALJ case.

Walmart, Inc., JD-30-24, 15-CA-292146 (ALJ Decision)

The case was initiated by Peter Naughton, who filed a charge against Walmart Inc. on March 14, 2022. The General Counsel issued a complaint on August 24, 2023, alleging that Walmart violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when its general merchandise coordinator, Roderick Tucker, threatened employees with discipline and discharge if they discussed disciplinary matters with coworkers.

The Administrative Law Judge (ALJ) found that Tucker's explicit instructions to Naughton not to discuss his discipline or the meeting with any coworkers, coupled with threats of further discipline, clearly violated Section 8(a)(1). The decision emphasized the longstanding principle that employees have the right to discuss disciplinary actions as they are integral to terms and conditions of employment.

Walmart failed to provide a substantial and legitimate business justification for this prohibition. The purported misunderstanding by Tucker and Kador regarding the application of confidentiality policies to non-managerial employees did not suffice to justify the infringement on protected rights.

The recommended order included:

1. Cease and Desist: Walmart must cease prohibiting employees from discussing discipline and must stop threatening employees with further discipline or discharge for such discussions.

2. Notice Posting: Walmart must post a notice informing employees of their rights and the violation, both physically and electronically, if such means are customary for communication with employees.

Significant Case Cited

1. Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds. Held that prohibiting the discussion of discipline interferes with Section 7 rights unless outweighed by a legitimate and substantial business justification.

Capital Roots, Inc, JD-29-24, 03-CA-300872 (ALJ Decision)

This case involves Capital Roots, Inc., a nonprofit food service company, and its interactions with SEIU Local 200. The Union filed charges alleging various unfair labor practices, including unlawful termination of employees, changes to job classifications, and withdrawal of union recognition.

Key Allegations and Legal Findings

1. Unlawful Terminations

   • Greg Campbell-Cohen: Campbell-Cohen, a policy director, was terminated allegedly for poor performance and causing fear among coworkers. The ALJ concluded that Campbell-Cohen was a managerial and confidential employee, thus not protected under Section 7 of the NLRA. Consequently, his termination did not violate Section 8(a)(3) and (1).

   • Cody Bloomfield: Bloomfield's termination was consistent with established disciplinary policies, and thus the ALJ dismissed the Section 8(a)(5) allegation related to her discharge.

2. Coercive Statements

   • CEO Amy Klein made several coercive statements, including directing employees not to discuss Capital Roots' business with Greg Campbell-Cohen. The ALJ found this directive violated Section 8(a)(1) as it unlawfully restricted employees' rights to discuss work conditions.

3. Surveillance and Email Access

   • Capital Roots was found to have surveilled employee emails and denied access to its Neon One database in retaliation for union activities. These actions violated Section 8(a)(1) and (3).

4. Unilateral Changes to Job Classifications

   • The ALJ ruled that Capital Roots violated Section 8(a)(5) and (1) by altering job classifications without bargaining with the union, which is required under the NLRA.

5. Negative Performance Appraisals

   • Melissa Spiegel received a downgraded performance appraisal which the ALJ determined was motivated by her union activities, thus violating Section 8(a)(3).

Regarding the status of Campbell-Cohen as managerial and confidential employee, the ALJ relied on the following:

The ALJ's decision relied on several key cases and legal principles:

1. Managerial Employee Standard

   • NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974): The Supreme Court held that managerial employees, who "formulate and effectuate management policies by expressing and making operative the decisions of their employer," are excluded from NLRA protections.

   • NLRB v. Yeshiva University, 444 U.S. 672 (1980): The Court expanded the definition of managerial employees to include those in educational institutions who exercise independent judgment in executing university policies.
     

   Application: Campbell-Cohen was deemed a managerial employee because he attended directors' meetings, where high-level policy discussions occurred, including strategies on responding to unionization efforts. His involvement in these meetings indicated he was part of the managerial team formulating employer policies.
   

2. Confidential Employee Standard

   • NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981): The Supreme Court clarified that employees who assist and act in a confidential capacity to persons who formulate labor relations policies are considered confidential employees and are excluded from the NLRA's protections.

   • B.F. Goodrich Co., 115 NLRB 722 (1956): This case further defined confidential employees as those who have access to confidential labor relations information not available to the general employee population.
     

   Application: The ALJ found that Campbell-Cohen attended confidential meetings and had access to sensitive labor relations strategies, which were not disclosed to other employees. This access and involvement in confidential discussions qualified him as a confidential employee.

Foster Farms LLC, 32-RC-318944 (Unpublished Board Decision)

The employer objected to the certification of the election on the basis that the union “interfered with employees’ right to refrain from union activities guaranteed by Section 7 of the National Labor Relations Act by offering to waive initiation fees for all employees who sign union authorization cards before a certification election, in violation of United States Supreme Court precedent.”

The regional director rejected this objection. The employer requested the Board review the regional director’s rejection. The Board granted the employer’s request and ordered a hearing over the issue.