Omaha! Omaha! NLRB ‘Audibles’ ALJ Decision

The National Labor Relations Board (NLRB or Board) recently upheld the decision of an Administrative Law Judge (ALJ) that an employer discharged several employees for engaging in protected concerted activity, but it overruled the ALJ and found that the employer also violated Section 8(a)(1) of the National Labor Relations Act (NLRA or Act) by unlawfully coercing employees with respect to their protected concerted activities and by creating the impression that such activities were under surveillance. Greater Omaha Packing Co., Inc. 360 NLRB No. 62 (March 12, 2014).

Greater Omaha Packing is a Nebraska-based meat processing and packaging plant. In April 2012, a group of unrepresented employees walked off the production line to protest the speed of the line and other working conditions, and thereafter met with the plant manager. That evening, the employees again met with the plant manager to discuss their compensation and other matters. One month later, when the employer learned that another work stoppage was planned, three employees were separately called into the office and dismissed. An ALJ found that the employer had unlawfully discharged the employees in retaliation for engaging in concerted protected activity. The employer appealed the judge’s order.

The Board affirmed the ALJ’s finding that the employer violated Section 8(a)(1) of the Act by discharging the employees, concluding that the planned walkout was a motivating factor in the discharge decisions and that the employer failed to demonstrate that it would have discharged the employees in the absence of the planned walkout. The Board panel of Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson, III found that the employer’s knowledge of, and animus toward, the organization of a work stoppage to protest certain terms and conditions of employment was established by (a) the fact that the employees were simultaneously discharged on the day of the planned work stoppage; (b) the pretextual reasons given for the discharges; (c) the employer’s statements to two of the employees that it knew they were leaders of the planned work stoppage; and (d) the employer’s coercive statements to a third employee. The Board agreed with the ALJ that when the three employees discussed a planned walkout to protest wages and the speed of the conveyor belt, which they had raised concertedly with the employer on previous occasions, “they were engaged in quintessential protected concerted activity.”

In the case below, the ALJ had dismissed the allegations of unlawful interrogation and creation of the impression of surveillance because they were an integral part of the unlawful discharge and any additional findings based on those statements would have been duplicative. The Board disagreed, finding that these allegations warranted consideration on the merits. First, if the conduct was found unlawful, it would warrant separate remedial provisions. Second, the Board held that “to summarily disregard independently coercive statements made immediately before or after an unlawful discharge would effectively privilege unlawful statements solely on the basis of their temporal proximity to another unlawful act.”

The first alleged statement was made to Carlos Zamora, a participant in the first work stoppage who was involved in the planning of the second walkout. On the day of the alleged walkout, Zamora was summoned to the Plant Manager’s office and asked in front of another manager “what is it that [Zamora] wanted?” After the Plant Manager told him he had good terms and conditions of employment, he asked Zamora the question again. When Zamora responded that he wanted an “increase,” he was immediately discharged. The Board found that these statements coercively conveyed the Plant Manager’s displeasure with Zamora’s protected conduct and as such, they were unlawful.

Although Member Johnson concurred in this finding, he emphasized “the need to afford employers the legitimate opportunity to exchange views with employees on terms and conditions of employment”  He opined that the Board should carefully guard against a “gag rule” by which “once unrepresented employees engage in protected concerted protests, an employer must either agree with the employees’ demands or totally refrain from discussing the merits of those demands for fear of being found to have violated the Act.” According to Johnson, “[s]uch a result would be counterproductive and undermine, rather than forward, the purposes of the Act.”

In the second instance, soon after Zamora’s discharge, the Plant Manager told employees Jorge Degante and Susana Delgado in essence that management knew they were leading the planned work stoppage.  When asked to identify the source of the knowledge, the Plant Manager refused to do so. The test for determining whether an employer has created an impression that its employees’ protected activities have been placed under surveillance is “whether the employees would reasonably assume from the employer’s statements or conduct that their protected protected activities had been placed under surveillance.” When an employer tells employees that it is aware of their protected activities, but fails to tell them the source of that information, it violates Section 8(a)(1) “because employees are left to speculate as to how the employer obtained the information, causing them reasonably to conclude the information was obtained through employer monitoring.” With Member Johnson dissenting because Degante and Salgado were widely known to be involved in planning the walkout, the other two Board members found that the statements to Degante and Salgado violated the Act.

This case is an important reminder that even non-union employees have the right to engage in work stoppages to protest terms and conditions of employment. It also demonstrates how managers must choose their words wisely when speaking to employees engaged in, or planning to be engaged in, protected concerted activities.