Edward G. Budd Manufacturing Co. v. NLRB (3d Cir. 1943)

I will be posting animations of historic labor and employment law cases as well as recent ones. If there is a historic or recent case that you think would make for a good animation send me an email at laborrelated@yahoo.com or post your suggestion as a comment.

This case, Edward G. Budd Manufacturing Co. v. NLRB (3d Cir. 1943), was an early test of the boundaries of the NLRA. A company dominated union was in place pursuant to procedures under the now defunct National Industrial Recovery Act. Weigand, an employee listed on the payroll as a rigger, was a union representative of this company dominated union. He was treated with extreme leniency by the employer. However, the employees moved to form a union of their own and the employer found out that Weigand was in support of the independent union. The leniency quickly went away. The Third Circuit had to decide whether the sudden change was unlawful:

The case of Walter Weigand is extraordinary. If ever a workman deserved summary discharge it was he. He was under the influence of liquor while on duty. He came to work when he chose and he left the plant and his shift as he pleased. In fact, a foreman on one occasion was agreeably surprised to find Weigand at work and commented upon it. Weigand amiably stated that he was enjoying it.*fn6 He brought a woman (apparently generally known as the "Duchess") to the rear of the plant yard and introduced some of the employees to her. He took another employee to visit her and when this man got too drunk to be able to go home, punched his time-card for him and put him on the table in the representatives' meeting room in the plant in order to sleep off his intoxication. Weigand's immediate superiors demanded again and again that he be discharged, but each time higher officials intervened on Weigand's behalf because as was naively stated he was "a representative." In return for not working at the job for which he was hired, the petitioner gave him full pay and on five separate occasions raised his wages. One of these raises was general; that is to say, Weigand profited by a general wage increase throughout the plant, but the other four raises were given Weigand at times when other employees in the plant did not receive wage increases.

The petitioner contends that Weigand was discharged because of cumulative grievances against him. But about the time of the discharge it was suspected by some of the representatives that Weigand had joined the complaining CIO union. One of the representatives taxed him with this fact and Weigand offered to bet a hundred dollars that it could not be proved. On July 22, 1941 Weigand did disclose his union membership to the vice-chairman (Rattigan) of the Association and to another representative (Mullen) and apparently tried to persuade them to support the union. Weigand asserts that the next day he with Rattigan and Mullen, were seen talking to CIO organizer Reichwein on a street corner. The following day, according to Weigand's testimony, Mullen came to Weigand at the plant and stated that Weigand, Rattigan and himself had been seen talking to Reichwein and that he, Mullen, had just had an interview with Personnel Director McIlvain and Plant Manager Mahan. According to Weigand, Mullen said to him, "Maybe you didn't get me in a jam." And, "We were seen down there." The following day Weigand was discharged.

As this court stated in National Labor Relations Board v. Condenser Corp., supra, 3 Cir., 128 F.2d at page 75, an employer may discharge an employee for a good reason, a poor reason or no reason at all so long as the provisions of the National Labor Relations Act are not violated. It is, of course, a violation to discharge an employee because he has engaged in activities on behalf of a union. Conversely an employer may retain an employee for a good reason, a bad reason or no reason at all and the reason is not a concern of the Board. But it is certainly too great a strain on our credulity to assert, as does the petitioner, that Weigand was discharged for an accumulation of offenses. We think that he was dischrged because his work on behalf of the CIO had become known to the plant manager. That ended his sinecure at the Budd plant. The Board found that he was discharged because of his activities on behalf of the union. The record shows that the Board's fiding was based on sufficient evidence.

The order of the Board will be enforced.

As always, my animated depiction can't precisely cover all of the details. The accents were necessary to distinguish who is speaking and the superhero outfits are worn because of certain limitations.

Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11

Can an employer retaliate against an employee who makes an oral complaint about an FLSA violation or does that complaint have to be in writing in order to trigger antiretaliation provisions?

The Supreme Court held today that a complaint does not have to be in writing in order to trigger antiretaliation provisions. However, the Court did leave a question unanswered:

Alternatively, Saint-Gobain claims that it should prevail because Kasten complained to a private employer, not tothe Government; and, in Saint-Gobain’s view, the antiretaliation provision applies only to complaints filed with the Government. Saint-Gobain advanced this claim in the lower courts, which held to the contrary. 570 F. 3d, at 837–838; 619 F. Supp. 2d, at 613. But Saint-Gobain said nothing about it in response to Kasten’s petition for certiorari. Indeed, it did not mention the claim in this Court until it filed its brief on the merits. We do not normally consider a separate legal questionnot raised in the certiorari briefs. See this Court’s Rule 15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). We see no reason to make an exception here.  Resolution of the Government/private employer question is not a "‘"predicate to an intelligent resolution"’" of the oral/written question that we granted certiorari to decide. See ibid. (quoting Ohio v. Robinette, 519 U. S. 33, 38 (1996)). That is to say, we can decide the oral/writtenquestion separately—on its own.

So whether a complaint (written or oral) to an employer rather to a government agency triggers the antiretaliation provision is still undecided by the Supreme Court.

The animation above is to show the point of the case, but does not take much from it in the way of facts or dialogue.

For blog coverage see Rick Bales at Workplace Prof Blog,  Philip Miles at Lawffice space, and Michael Maslanka at Work Matters and Jon Hyman at Ohio Employer Blog.

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.
 

More on Technology

Two more follow ups on technology in labor and employment law:

1. New Ways to Harass:
Josh Bernstein at New York Employment Lawyer explains a case of sexual harassment via text messages and reminds us that new technologies present new ways to harass.  Bernstein concludes,

"Modern technology allows individuals to communicate without physically interacting, and a wealth of academic literature suggests that this physical disconnect leads individuals to act in a much more blunt, aggressive and exaggerated manner than they would if they could see the other person they are communicating with or hear their voice. Moreover, modern communications technology leaves a permanent record of conversations that previously might haven given rise to a he-said she-said in any sort of legal dispute. Given these trends, “textual harassment” is quickly entering the discrimination law vernacular."

In terms of emerging trends, if you follow the developments in schools where kids are being bullied via electronic communications, and even "bullying" their teachers in the same way, it's pretty clear that when these kids grow up and enter the workforce some of these behaviors will enter it with them (although there is at least some hope that the behaviors will dissipate with age).  As Bernstein's post suggests, the new forms of harassment aren't waiting around for the new generation, but are with us now.  Some employer-side attorneys see such progressions as yet another reason to implement strict policies against use of new technologies, but others have more lienient advice for their clients. For instance, Jay Shephard of Gruntled Employees, writes of social media policy's,

"I for one prefer the "Yes" approach. Yes, social media is here to stay. Yes, employees are going to tweet and Facebook and make connections with people on social-media sites. Yes, these employees can act as effective brand ambassadors for their companies, and they should be encouraged to do so. Yes, sometimes Bad Things relating to social media might happen, but we'll deal with them. We don't need draconian policies to prevent people from acting like idiots. People are going to do that from time to time anyway. Why throw out the good along with the bad?"

These new technologies and their implications give us a lot to think about.  Wouldn't it be a good idea for labor and employment lawyers to get together and discuss these type of issues?

2. Symposium
I've learned (via the Workplace Prof Blog) that there will be a symposium on the subject at NYU New York University, April 27-29.  I'd like to attend, but kind of doubt I'll make it up there.  I'll be interested to read whatever comes out of it.  Here are the topics:

* Are You Protected? Privacy, Intellectual Property, Trade Secrets and Non-Competes in Web 2.0
* What You Really Need To Know: The Top 5 Legal and Legislative Technology Developments Impacting the Practice and the Workplace
* Telepresence and Telepresence Robots Being Used in the Workplace
* Social Media and the Global Workplace
* Public Sector Employment: Emerging Issues and their Potential Private Sector Impact
* Electronic Invasion of the Workplace: the Good, the Bad and the Aural?
* Discovery and Subpoenas for the Next Generation of
* Workplace Technology
* Technology as a Research, Communications and Collaborative Tool in the Practice of Law: Retrospective and Prospective
* Investigating and Forgetting on the Web
* Technology Tools and Legal Ethics.

I'm glad to see that on of the topics is not, "How Watson and other Super Computers are Making Labor and Employment Attorneys Obsolete."  At least not this year.

Nevettie v. Wal-Mart

In this case, the Missouri Court of Appeals found that a Wal-Mart employee who told a manager that she disgusted him and made a "very rude gesture" towards her was entitled to unemployment benefits.

According to the Missouri Court of Appeals Eastern District, (see Riverfront Times coverage here), Nevettie, a Wal-Mart employee, had allegedly already received a couple of "coachings" -one for attendance and one for performance- and so he may have been on his last leg when the events transpired. According to the Court:

"Ms. Horn [a manager] testified that on September 4, 2009, she saw claimant in the maintenance department supply room when she was going to the nearby shoe department stock area. She asked claimant how his day was going, and he "just kind of real off the wall he said just you disgust me." A few minutes later, she saw him putting away cases of toilet paper and paper towels, and she commented that the store had finally received paper towels. Claimant replied, "yeah, yeah, yeah, we did and that it's a good thing because so now we--now the people don't have to do this," and he then made a demonstration with his hand, which Ms. Horn characterized as a "very rude gesture."" (Emphasis supplied).

Ms. Horn reported the incident to Nevettie's manager and Nevettie was (allegedly) terminated for the comment and making the "very rude gesture."  Nevettie applied for unemployment.  The initial ruling by a Division of Employment Security deputy was that Nevettie was entitled to benefits because he had not been discharged for a matter related to work.  The deputy was reversed by the Division's Appeals Tribunal, who found that the discharge was related to work and that Nevettie's conduct had shown "a disregard of the standards of behavior the employer had a right to expect of the claimant."  The decision was affirmed by the Labor and Industrial Relations Commission.  However, the Missouri Court of Appeals reversed and remanded the Commission's decision.

In pertinent part, the Court writes, "in this case employer did not produce evidence that it had a policy on offensive language or conduct. The first comment was rude and disrespectful, but it was not vulgar or obscene. Neither the comment nor the subsequent gesture, was accompanied by aggressive or angry behavior. Although the gesture was disgusting, it was not confrontational...
...the evidence does not support a determination that claimant's comment and gesture were the result of anything more than simple lack of judgment. It does not establish that claimant intentionally disregarded the standards of behavior that employer had the right to expect."

The animation roughly depicts the facts as presented by the Court, although, as always, certain changes needed to be made due to technical limitations and artistic considerations.