09/26/2024: Employer Rule Governing Off-Duty Conduct of Workers Is Illegal
09/26/2024: Employer Rule Governing Off-Duty Conduct of Workers Is Illegal
Yet another Starbucks case.
Pro Residential Services, Inc., 373 NLRB No. 100, 28-CA-239775 (Published Board Decision)
This case involves Pro Residential Services, Inc. and Gilbert Cuhen, an HVAC technician employed by Pro Residential, who filed multiple unfair labor practice (ULP) charges against the company. The primary allegations involve violations of Sections 8(a)(1) and 8(a)(4) of the National Labor Relations Act (NLRA), related to overbroad work rules in the employee handbook, as well as retaliatory actions taken against Cuhen for filing ULP charges with the NLRB.
ALJ Decision:
The ALJ found that Pro Residential Services violated Section 8(a)(1) by maintaining several overbroad work rules in its employee handbook. These rules included prohibitions on the discussion of personnel records, off-duty conduct, solicitation, and personal preferences regarding religion and politics, among others. The ALJ concluded that these rules interfered with employees’ Section 7 rights under the NLRA.
However, the ALJ dismissed certain other allegations, including the claim that Pro Residential violated Section 8(a)(4) by discharging Gilbert Cuhen in retaliation for filing an NLRB charge. The ALJ found that the discharge was based on Cuhen’s disruptive behavior rather than his union activity or participation in NLRB proceedings.
NLRB Decision:
The National Labor Relations Board (NLRB) reviewed the ALJ’s findings and adopted many of them, while remanding certain issues back to the ALJ for reconsideration under the Board’s new standard set forth in Stericycle, Inc., 372 NLRB No. 113 (2023). The Stericycle decision overruled Boeing Co., 365 NLRB No. 154 (2017) and established a new standard for evaluating employer work rules that are alleged to interfere with employee rights under Section 7.
Legal Analysis:
Section 8(a)(1) Violations – Overbroad Work Rules:
The NLRB found that several rules in Pro Residential's employee handbook were unlawfully overbroad and could reasonably be interpreted to interfere with employees' rights under Section 7 of the NLRA. These rules included:
A Personnel Records rule prohibiting employees from disclosing personnel information.
An Open-Door Policy that restricted employees from discussing workplace complaints with coworkers.
An Off-Duty Conduct rule that prohibited “immoral” behavior without adequately defining what constituted immoral conduct.
A Solicitation Policy that prohibited employees from soliciting on company or client property.
A Personal Preferences rule that restricted employees from discussing views on religion, politics, or unionization with coworkers.
The Board agreed with the ALJ that these rules were overbroad and could chill employees' exercise of their Section 7 rights. The NLRB ordered Pro Residential to rescind these rules and notify employees of their rights under the NLRA.
Section 8(a)(4) Allegations – Retaliatory Discharge:
The General Counsel alleged that Pro Residential violated Section 8(a)(4) by discharging Gilbert Cuhen in retaliation for filing a ULP charge. Under Wright Line, 251 NLRB 1083 (1980), the General Counsel must prove that union activity or participation in NLRB proceedings was a motivating factor in the employee’s discharge. The burden then shifts to the employer to show that it would have taken the same action regardless of the protected activity.
The ALJ concluded, and the Board agreed, that Pro Residential had legitimate reasons for discharging Cuhen, unrelated to his NLRB activity. Cuhen had engaged in disruptive and insubordinate behavior, which included yelling at a manager and creating a hostile work environment. The Board found that Pro Residential would have terminated Cuhen for these reasons, even if he had not filed a ULP charge.
Remand for Further Consideration:
The Board remanded certain aspects of the case to the ALJ for reconsideration under the Stericycle standard. Specifically, the Board found that the ALJ had not fully considered whether certain other rules in Pro Residential’s handbook, such as those governing employee dress code and disruptions during work hours, could be construed as unlawfully overbroad. The Board directed the ALJ to evaluate these rules under the more employee-friendly framework established in Stericycle.
Significant Cases Cited:
Stericycle, Inc., 372 NLRB No. 113 (2023): Established the standard for evaluating facially neutral work rules that may interfere with employee rights under Section 7.
Wright Line, 251 NLRB 1083 (1980): Created the burden-shifting framework for determining whether an adverse employment action was motivated by protected activity.
JMC Electrical Contractor, LLC, 373 NLRB No. 113, 07-CA-328088 (Published Board Decision)
This NLRB decision involves a Motion for Default Judgment filed by the General Counsel against JMC Electrical Contractor, LLC. There is no underlying ALJ decision in this case.
Key points of the NLRB decision:
The General Counsel sought default judgment because JMC failed to serve a copy of its answer on the Charging Party as required by Section 102.21 of the Board's Rules and Regulations.
JMC filed an answer with the Board but did not provide proof of service to the Charging Party, despite reminders from the Region.
The Board granted the Motion for Default Judgment, deeming the allegations in the complaint to be true due to JMC's failure to properly serve its answer.
The Board found that JMC violated Sections 8(a)(1) and (3) of the NLRA by laying off employee Jason M. Plowman for engaging in union activities.
Legal Analysis:
The Board emphasized the importance of complying with Section 102.21 regarding service of answers on all parties.
The Board rejected any potential defense based on JMC's pro se status, citing Active Metal Mfg., 316 NLRB 974 (1995), which held that pro se status does not excuse failure to comply with service requirements.
The Board also noted that JMC's alleged cessation of operations did not excuse it from filing an answer, citing GDT Electrical d/b/a Gardner Electrical Corp., 356 NLRB No. 154 (2011).
Asante d/b/a Asante Rogue Regional Medical Center, 373 NLRB No. 110, 19-RC-316594 (Published Board Decision)
This NLRB decision involves the Board denying the Employer's Request for Review of a Regional Director's Decision and Certification of Representative in Case 19–RC–316594. There is no underlying ALJ decision mentioned.
Key points of the NLRB decision:
The Board denied the Employer's Request for Review, finding no substantial issues warranting review.
The main legal issue addressed was whether the Union representatives' interactions with eligible voters in the 24 hours prior to the election violated the Peerless Plywood rule.
Legal Analysis:
The Board agreed with the Regional Director that the Union’s conduct did not violate the Peerless Plywood rule.
The Board clarified that the Peerless rule prohibits "election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election," but does not prohibit campaign speeches if employee attendance is voluntary and on their own time.
The Board emphasized that "minor conversations" and "brief urging" of voters do not violate Peerless, citing Comcast Cablevision of New Haven, 325 NLRB 833 (1998).
The Board rejected the Employer's argument that any "election speech" on work time is per se objectionable, citing Business Aviation, Inc., 202 NLRB 1025 (1973).
The Board found that no assembly of employees occurred, as employees were not called away from workstations or gathered in groups, citing Electro-Wire Products, Inc., 242 NLRB 960 (1979) and Associated Milk Producers, Inc., 237 NLRB 879 (1978).
The Board noted that employees voluntarily approached the Union’s table and chose whether to stop or not, indicating no forced exposure to the Union’s message.
Significant cases cited:
Peerless Plywood Co., 107 NLRB 427 (1953) - Established the rule prohibiting election speeches on company time to massed assemblies of employees within 24 hours before an election.
Comcast Cablevision of New Haven, 325 NLRB 833 (1998) - Held that minor conversations and brief urging of voters do not violate the Peerless rule.
O'Brien Memorial, Inc., 310 NLRB 943 (1993) - Found that exhortations to vote yes are not a "speech" within the Peerless Plywood doctrine.
Business Aviation, Inc., 202 NLRB 1025 (1973) - Determined that casual solicitation of employees is not "speech" to a massed assembly of employees.
Electro-Wire Products, Inc., 242 NLRB 960 (1979) - Clarified that an assembly requires employees to be called away from their workstations or gathered to be spoken to in groups or singly.
Starbucks Corporation, 373 NLRB No. 111, 25-CA-292501 (Published Board Decision)
This NLRB decision involves allegations that Starbucks Corporation violated Sections 8(a)(1), (3), and (4) of the National Labor Relations Act through various actions against employees Jonathan Gill and Jennifer Lenz related to their union activities.
Key points of the ALJ decision:
The ALJ found that Starbucks violated Section 8(a)(4) and (1) by issuing a written warning to Gill for missing work to comply with an NLRB subpoena.
The ALJ concluded that Starbucks violated Section 8(a)(3) and (1) by:
Issuing a written warning to Gill on March 16, 2022
Sending Lenz home early on May 16, 2022
Issuing a final written warning to Lenz on June 16, 2022
More closely scrutinizing Lenz's work on June 16, 2022
The ALJ applied the Wright Line framework to analyze the 8(a)(3) allegations.
Key points of the NLRB decision:
The Board affirmed the ALJ's rulings, findings, and conclusions.
The Board modified the ALJ's recommended Order to conform to standard remedial language and recent Board decisions.
The Board denied the General Counsel's request for additional remedies such as emailing notices to supervisors and managers and requiring mandatory training.
Legal Analysis:
The Board and ALJ applied the Wright Line framework for the 8(a)(3) allegations. Under Wright Line, the General Counsel must first show that the employee's protected activity was a motivating factor in the employer's decision. The burden then shifts to the employer to demonstrate it would have taken the same action absent the protected activity.
For the 8(a)(4) allegation regarding Gill's subpoena-related absence, the ALJ relied on Board precedent holding that an employer violates the Act by disciplining an employee for missing work to comply with a Board subpoena, even if consistent with neutral policies.
Significant cases cited:
Wright Line, 251 NLRB 1083 (1980) - Established the framework for analyzing allegations of discrimination based on protected activity.
NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) - Held that employees have the right to union representation during investigatory interviews that may lead to discipline.
Fitel/Lucent Technologies, 326 NLRB 46 (1998) - Found that requiring employees to find substitutes when subpoenaed for Board proceedings violates the Act.
Walt Disney World Co., 216 NLRB 836 (1975) - Held that employers violate the Act by imposing conditions on employees' ability to respond to Board subpoenas.
Valmar Masonry, 373 NLRB No. 112, 20-CA-328213 (Published Board Decision)
This NLRB decision involves a default judgment against Valmar Masonry LLC for failing to file an answer to a complaint alleging violations of Section 8(a)(1) of the National Labor Relations Act. There is no underlying ALJ decision in this case.
Key points of the NLRB decision:
The Board granted the General Counsel's Motion for Default Judgment due to the Respondent's failure to file an answer to the complaint.
The Board deemed the allegations in the complaint to be true, finding that the Respondent: a) Threatened employees with unspecified reprisals if they made third-party appeals to the general contractor. b) Discharged employee Jose Damian for concertedly complaining about wages, hours, and working conditions, including calling the general contractor to complain about unpaid wages.
The Board concluded that these actions violated Section 8(a)(1) of the Act by interfering with, restraining, and coercing employees in the exercise of their Section 7 rights.
Legal Analysis:
The Board applied Section 102.20 of its Rules and Regulations, which provides that allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown.