Monday, June 5, 2017

A contrary (and common sense) appellate view on rude employees and the NLRA

It’s been six weeks since I reported on NLRB v. Pier Sixty, in which the 2nd Circuit Court of Appeals held that the National Labor Relations Act protected the profanity-laced Facebook rant of a disgruntled employee. I have hoped that Pier Sixty is an aberration. Thankfully, last week the 1st Circuit came along with a well reasoned contrarian view in a case in which the alleged employee misconduct was much less severe.

In Good Samaritan Med. Ctr. v. NLRB [pdf], the employer fired Camille Legley, a new probationary employee, who, in an employee orientation meeting, become increasingly contentious over the issue of whether he needed to join the union in order to work at the facility. Various employer witnesses described Legley’s conduct during the meeting-in-question as “irriated,” “talking loudly,” “consuming the room,” “rude,” and “overbearing.” Good Samaritan fired Legley the following day for violating its civility policy.

No one in the case disputed that Legley was engaging in protected activity under the NLRA in asserting a right not to join the union. The issue was whether his (mis)conduct crossed the line, and whether some reason other than his union opposition motivated Good Samaritan’s decision to fire him. On this issue, the 1st Circuit sided with the employer:
[W]e do not believe that the NLRB has established substantial evidence on the record as a whole that Good Samaritan would not have made its decision to discharge Legley despite the protected activity. Here, the NLRB simply stated that Good Samaritan failed to prove that it would have discharged Legley in the absence of his protected activity. At most this can be read to assert that Good Samaritan’s proffered reasons for discharging Legley were insufficient. … In the absence of an adverse credibility finding or a finding of pretext, the fair inference to be drawn from these statements is that Good Samaritan discharged Legley because of how it reasonably perceived his behavior not because of his protected conduct.
In other words, if an employer has a good faith belief that an employee’s conduct violates a policy, absent a finding that someone material to that decision is lying, or absent a finding of pretext, the NLRB cannot overturn the employer’s good faith decision.

Is it me, or did the 1st Circuit just incorporate the honest belief rule into NLRA jurisprudence? And, if that is, in fact, what just happened (and it sure looks that way), then bravo 1st Circuit. I stand up and applaud you. Because if a client called me with the facts of Good Samaritan, or, worse yet, Pier Sixty, and asked, “Can I fire this employee,” this is what I’d say:
I’m glad you called, because you are right to have concerns. Yes, this employee did mention a labor union, and he generally made his rude/insubordinate/offensive comments in the context of those union-related comments. The National Labor Relations Act has a concept called “protected concerted activity,” which grants all employees (whether in a labor union or not) the right, between and among themselves, to discuss wages, hours, and other terms and conditions of employment. That right certain protects comments relating to union elections and whether a new employee must join a union upon hiring. It does not, however, mean that employees check their dignity at the door. You should still have the right to fire or otherwise discipline a rude/insubordinate/offensive employee, even if the rude/insubordinate/offensive comments were made in context of otherwise protected concerted activity, as it appears is the case here. 
Now, understand that the NLRB, as currently composed, takes a different view, as have some courts that have also examined this issue. But, also understand that the NLRB’s composition will change under President Trump, and it’s safe to assume that Trump’s NLRB will be less sympathetic to the argument that the NLRA protects employee comments and conduct such as those which you described to me. Would a decision to fire or otherwise discipline this employee be risk-proof or litigation-proof? Absolutely not; no decision ever is. But, you need to ask yourself, “Is this the type of employee I want working for me? Does this employee embody the values and exhibit the type of behavior that I want my employees to model?” If the answer is “no” (and I suspect it is, or you wouldn’t be calling me), and I was in your shoes, I know what decision I would make, as long as I understand that risks that may follow.
And I sure wouldn’t want the NLRB or a court second-guessing my client’s good faith business judgment in reaching its final decision.