As we have often discussed, there is a fine line between protected and unprotected activity.  Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers.

On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of an employee engaged in protected activity may not be justified solely by its subjective belief that the employee misbehaved.  Rather, the employer must demonstrate that the purported misconduct actually occurred to implement discipline.  This determination may be quite challenging in light of conflicting employee statements and prolonged, hotly-disputed factual contexts.  However, as this decision illustrates, an employer’s failure to reach the “correct” conclusion may lead to liability under the NLRA.

Background

In Nestlé USA, Inc., 370 NLRB No. 53 (2020), an employee and several co-workers submitted a signed petition to their employer complaining of verbal abuse and violations of internal safety protocols by a supervisor. The employer conducted an extensive investigation, and interviewed the complaining employee, his coworkers, and the accused supervisor.  At the last minute, the employee added that he was told by another co-worker about an incident in which the co-worker overhead the supervisor referring to three black employees as “monkeys” after they had trouble on the assembly line.  The employer determined that the allegations against the supervisor were valid, but did not address the allegedly racist comment.  The supervisor was given a verbal warning and a 1-2 week suspension.

Dissatisfied with the company’s response, the employee met with the plant manager to reiterate his complaint regarding the allegedly-racist comment, causing the investigation to be reopened.  During the renewed investigation, the employee made several verbal and written statements to the company, including:

  • that he had informed the black co-worker who was purportedly the subject of the supervisor’s racist comment and the co-worker expressed support for his complaint against the supervisor;
  • that another co-worker was made “uncomfortable” by the racist conduct of another, different supervisor; and
  • repeatedly expressing that he and his co-workers were unhappy with the employer’s response and wanted the supervisor to be removed.

In subsequent interviews, the employee was evasive about his conversations with his black co-worker and refused to answer several questions, and the employer received statements by the employee’s co-workers indicating that the employee’s complaints about the supervisor were motivated, at least partially, by a desire to take over the supervisor’s position.

Frustrated by the employee’s conduct, the employer first suspended him to prevent further interference with their investigation, and then terminated him for his dishonesty and refusal to cooperate with the investigation.

The Employee Engaged in Protected Activity

The ALJ determined that the employee clearly had engaged in protected concerted activity by submitting a complaint regarding the supervisor and found that his subsequent efforts were a logical continuation of that earlier activity.  The ALJ noted that the employee’s purported subjective reason for engaging in conduct— even if it was a selfish attempt to assume his supervisor’s position— was irrelevant to the question of whether his conduct was protected.  What mattered was that the employee served as a spokesperson for his co-workers’ complaints about the supervisor and that he sought to improve his co-workers’ working conditions.

The Employee Did Not Forfeit the Protections of the Act

The employer argued that even if the employee engaged in protected activity, his dishonesty during interviews by the employer forfeited the Act’s protections.  Specifically, the employer argued that the employee instigated his black co-worker to complain regarding the supervisor’s racist comment, even though neither the co-worker nor the employee had heard the comment firsthand.

Despite this complex factual record, which included multiple, often-contradictory statements by employees and numerous interviews, the ALJ ultimately determined that the employee had not acted dishonestly by reporting his black co-worker’s support of his complaint or repeating his other co-worker’s allegations about a different supervisor.

As a result, the ALJ found that there was no underlying misconduct which the employer could use to justify its disciplinary action.  The Board affirmed, citing NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964) for its holding that an employee’s discharge for misconduct during protected activity is justified only if the employee is “in fact, guilty of that misconduct”.

The Employee’s Conduct Outside of Protected Activity Did Not Justify His Termination

Alternatively, the employer argued that it fired the employee not due to his misconduct while engaged in protected activity, but due to his misconduct outside of protected activity.  Specifically, the employer claimed that during later interviews in the course of the investigation, the employee falsely attributed comments to his black co-worker and refused to cooperate by answering the employer’s questions. The Board found that the ALJ properly analyzed the company’s claim through the burden-shifting causation framework of Wright Line (251 NLRB 1083 (1980)), which evaluates whether an adverse action taken against an employee was motivated by protected activity or by a legitimate lawful reason.

The Board affirmed the ALJ’s finding that the General Counsel had satisfied its initial burden of showing that the employee engaged in protected concerted activity, which the employer knew of and that the employer demonstrated animus towards the protected activity. The Board also agreed that the employer had not met its burden to prove it would have discharged the employee absent his protected conduct.

The Board pointed to the ALJ’s earlier finding that the employee had not acted dishonestly to refute the employer’s claim that the employee falsely attributed comments to his black coworker.  As to the second rationale, the Board found the employer failed to provide evidence that it had a history of discharging employees based on their refusal to cooperate in internal investigations, and did not discipline two of his co-workers, who had refused to provide written statements.  Thus, the Board affirmed the ALJ’s conclusion that under Wright Line, the employer violated Section 8(a)(1) and interfered with the employee’s exercise of his rights under the Act.

Takeaways

Investigations into complaints protected by the Act often face complications due to how employees respond to questions which can fall along a spectrum from complete candor, to exaggeration, to evasion, and sometimes dishonesty by the employee.  This case is a reminder that often there is substantial overlap between what might be considered misconduct and what is protected activity, particularly where the factual record is complicated and hotly disputed.  It is often hard to extricate the two.  In other words, it is just plain risky to discipline or discharge an employee who may be engaging in misconduct during the course of a protected activity.

An employee’s reasons for engaging in workplace advocacy or other protected conducted—however arguably self-motivated—are immaterial to the objective determination of whether the conduct warrants protection under Section 7 of the Act.  Employers faced with similar situations should carefully review how they have responded to similar conduct by other employees before taking disciplinary action.  In this case, it was difficult to argue the misconduct warranted termination when there were other employees who received only a written warning.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Scott Tan Scott Tan

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of…

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of the Moot Court Honors Board. He also worked as a research assistant for Dean Jennifer Mnookin and Professor Hiroshi Motomura.