Another case on the NLRB insubordination theme...
This case has an involved procedural history. First, there was Allied Mechanical I (Allied Mechanical, Inc., 343 NLRB 631 (2004)) where the Board found that the Employer had violated Section 8(a)(3) and (1) of the NLRA by issuing two warnings to employee and union advocate, Pinheiro. Pinheiro's troubles did not end there, and later he mistakenly believed that he had been cut out of overtime. He confronted his supervisor about the issue and the supervisor told him that due to the union and problems with the Labor Board, overtime procedures would be in accordance with the employee hand book. Pinheiro then made a comment that he probably regrets making. He was suspended and terminated purportedly for insubordination and poor work performance. The Board analyzed the suspension and discharge under Wrightline (rather than the Atlantic Steel analysis featured in most of the cases posted so far) in Allied Mechanical, 349 NLRB 1077 (2007), and reversed the ALJ, ruling that the suspension and termination were lawful. The Board assumed without deciding that a prima facie case had been made out, but found that the Employer had rebutted the prima facie case by proving it would have terminated Pinheiro with or without his union activity. However, in 321 Fed. Appx. 581 (9th Cir. 2009), the 9th Circuit reversed the Board's ruling as to the Employer's rebuttal and remanded the case to the Board to decide if the prima facie case had been made out. Whereby Allied Mechanical, 356 NLRB No. 35 (2010) was born and Pinheiro's suspension/termination was found to be unlawful.
Tuesday, November 30, 2010
Tuesday, November 16, 2010
For those who want an example of an otherwise protected employee going to far, here it is. In this case, an employee, Harris, who was a lead union organizer became the target of a plot by management. Management directed Harris' supervisor to give him an "unwarranted evaluation downgrade." The supervisor refused and was terminated, a move that deeply troubled Harris. Harris called for a meeting with the terminating manager, his new supervisor, and an HR representative. Full decision here.
There is a lot going on in this 55 page decision and this clip really cannot be considered in isolation. The employee in question engaged in protected and concerted activity not depicted here and his termination which was purportedly in part for the exchange depicted was found to be unlawful as a pretext. The full decision is linked here.
Thursday, November 11, 2010
NLRB v. Thor Power Tool is one of the classic cases of this line. Because of technical limitations, I had to change things a little bit, but the dialogue is pretty much the same. In Thor, a steward represented an employee at a grievance meeting. The grievance meeting became heated and the steward called the boss a "horse's ass." The steward was fired for referring to his boss in this way.
Wednesday, November 10, 2010
In Plaza Auto, a car salesman engaged in protected, concerted activity when he complained to and on behalf of the other salesmen regarding such issues as lack of breaks or bathrooms and pay. The salesman was also suspicious that the owner padded the vehicle costs which cut into commissions. Many people don't know that such complaints can be activity protected by the law. The salesman was called into a meeting with management and the owner. Things got a little...heated in the meeting. The NLRB examined whether the salesman lost protection of the NLRA by his conduct during the meeting. The full text of the decision is linked here.
In Kiewit Power, the electricians working on a turbine had a ten minute walk to a break area, but by contract, they only had a fifteen minute break. The practice was that they were allowed to walk to their break area and then begin the break, effectively taking a 35 minute break. However, management decided to end this practice and informed the electricians that they would need to break where they were working. The men objected on several grounds, including that where they were working was not a sanitary place to take a break. The men refused to obey the directive to break where they were and a supervisor was tasked with issuing verbal warnings (the first step in their progressive disciplinary system). One interaction became...heated as depicted below. The NLRB had to determine whether an electrician's objections ceased to be protected activity. The full text is linked here.