Worldmark by Wyndham, 356 NLRB 104 (2011)

Here's a pca case with a little bit of fashion for you to boot.

Wyndham changed its "resort casual" dresscode for its sales staff and the change did not go over well. The new code meant that shirts had to be tucked in. Tommy Bahama shirts were particularly popular with the sales staff, especially with salesman Feathers who held the title "King of Tommy Bahama Shirts." Tommy Bahama shirts are not meant to be tucked in.  Salesman Foley (no relationship) returned from vacation to find out about the new policy. Protected concerted activity ensued.

The animation is based on the facts of the case, although certain changes were necessary for both artistic and technical reasons.  The voice over is my poor version of a Bill Lumbergh.  

For more on this case, check out Jeff Hirsh's post at Workplace Prof Blog and Michael Eastman's take at NLRB Insights.

I couldn't get my animated characters to wear Tommy Bahama style shirts, so here is my son in one. Clearly this shirt should not be tucked in.
 

The Right to Complain about a Bully

A case reported by the BNA this morning caught my attention and the attention of  Michael Fox over at Jottings by an Employer's Lawyer.

In Street v. U.S.Corrugated, Inc.  (W.D. Ky 1.25.11), the company was having financial problems and brought in a "turn around specialist" (Greathouse) to manage.  "Unfortunately, Greathouse’s management style did not mesh well with some of the employees as he often yelled, used profanity, threw objects, made physical threats, and was generally difficult to work with." Six employees -five women and one man- complained about Greathouse's abusive behavior to a production manager.  One of the women also drafted a written complaint detailing the   abusive  behavior.  The complaints were relayed to the general manager and the CEO.  The "turn around specialist" was let go, a seeming victory for the plaintiffs.  However, five of the six who complained soon found that they too were out of jobs, purportedly due  to unsatisfactory job performance and outsourcing.

The plaintiffs made out claims of  (1) gender-based discrimination; (2) retaliation; (3) breach of expressed or implied contract; (4) promissory estoppel; (5) intentional infliction of emotional distress; (6) terroristic threatening; (7) libel; (8) slander; (9) defamation; (10) tortious interference with Plaintiffs’ ability to earn money; and (11) violation of the whistle-blower statute.  None survived summary judgment.

The BNA quotes and summarizes as follows:

   “The record here indicates that both men and women equally fell victim to Greathouse's abusive  

     management tactics,” Judge Joseph H. McKinley wrote. “Greathouse's actions were certainly 

     inappropriate, but this does not establish a Title VII claim absent the intent to target a specific gender. 

     Nothing in the record supports such a conclusion.”

     The plaintiffs also alleged they were terminated in retaliation for complaining about Greathouse's 

     alleged conduct, in violation of Title VII and the Kentucky Civil Rights Act. The court, however, ruled 

     that the plaintiffs did not engage in protected activity under Title VII or state law because their 

     complaints to management were not about suspected sex discrimination. Rather, the plaintiffs had 

     complained about Greathouse's alleged abusive treatment of all employees, male and female, the court 

     pointed out.

     “Plaintiffs obviously believed that Greathouse's conduct made their work environment a hostile one 

     and they opposed his presence at the factory and his intolerable management style,” McKinley wrote. 

     “However, Title VII only protects employees from retaliation for having opposed an employer's 

     unlawful actions, such as discrimination based on gender, age or race. There is no protection under  

     the act for employees who simply complain about the boss being a bully.” (emphasis supplied).

Fox, who opposes the enactment of anti-bullying laws, writes that this case will be used as an argument for the need of anti-bullying legislation.  Fox goes on to explain why he disagrees.

My thought is this: Although the plaintiffs "threw the book" at the employer and came away empty, there may already be a law on the books that would have protected them.  If they were employees covered under the NLRA (as opposed to supervisors, independent contractors, etc), "simply complaining about the boss being a bully" to each other would be protected under Section 7.

PAREXEL INTERNATIONAL, LLC, 356 NLRB No. 82 (2011)

The animation is based loosely on the facts of Parexel International.  Some changes were necessary to make it concise. 

Another interesting PCA case.  Here is my summary (I skip a large procedural issue):

South African employees seemed to be getting better treatment (and pay) than other employees.  One nurse talked to a South African employee about his preferable treatment and later raised the issue with her supervisor.  A manager, an HR consultant, and the nurse had a meeting to discuss the source of a rumor that South African employees were being treated better than native born Americans.  The nurse told the manager and HR consultant that she had not discussed or complained to any regular employees about the issue, but had only complained to her supervisor about it.  Some days later the employee was fired.

The General Counsel alleged that the nurse had engaged in protected, concerted activity and had been unlawfully discharged for that activity.  The judge found that the nurse had been discharged for those conversations, and that the discharge had been in part a "preemptive strike" designed to stymie similar complaints among other employees.  However, the judge found that while the nurse's complaints were of a protected nature, she had not engaged in any concerted activity.  Because the nurse had not engaged in protected concerted activity, he recommended dismissal of the allegation.

However, in a 2-1 decision, the Board reversed and ordered the reinstatement of the discharged nurse.  Whether or not the nurse had engaged in PCA, the Board ruled that a termination designed to nip-in-the-bud employee complaints about wage discrepancies was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights.  On page 4, the Board writes,

"That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. [Foot note omitted]. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act.[Foot note omitted] . What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity."


Full decision here.

SALON/SPA AT BORO, INC, 356 NLRB No. 69 (2010)

Sorry, no exciting Atlantic Steel moments, but this is an interesting protected concerted activity case.  It takes place in an environment not often seen in NLRB volumes: a salon.

A policy against negativity was the "philosophy and vision" of its owner who strove to retain guests by eliminating negative vibes.  The policy actually seemed to lead to more negativity as there were constant accusations that employees and supervisors were being Negative Nelly's.   Witch hunts to find out who was being negative ensued.  Ultimately, the policy and its application were found to be unlawful.  Not featured in my clip, the ALJ addressed a little bit of facebook policy, and so it's a must read for those looking for clues into the future analysis of the NLRB on social media.  Full decision here.

Plaza Auto 355 NLRB No. 85

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.