Alle Processing Corp. - NLRB
Facts: The employer, Alle Processing Corp. (“Alle”), entered into a bargaining relationship with a local union. The collective bargaining agreement (“CBA”) contained a union security clause which required that all bargaining unit employees become members of the union as well as a clause that the union could request the employer to terminate employees that failed to pay dues and initiation fees. The CBA included a checkoff clause which enabled the employer to deduct union dues from the paychecks of employees and remit the dues directly to the union. (The dues deductions were voluntary and each employee was required to voluntarily sign a checkoff authorization form.)
Although union representatives were able to get most employees to sign deduction authorization forms, some employees held out. The manager at one of Alle’s plants met individually with the employees that held out and eventually only one employee refused to sign the form. During the first meeting with the employee, he calmly declined to sign. At the second meeting, after being convinced to sign the form, a comment from Alle’s management caused him to flip off the manager. The manager immediately threatened to terminate the employee. The employee responded “I can get to you whenever I want...whenever I want I can find you...this is how I work, I’m a streets guy.” The employee subsequently grabbed a small carousel containing coffee items, acted as if he would throw it, but was stopped from doing so. The employee was thereafter terminated and he left the Alle plant without any further incident.
The employee proceeded to file a charge with the National Labor Relations Board (“NLRB”) and Claim Alle violated his Section 8(a)(3) and (1) rights by terminating him for refraining from joining the union and/or declining to sign the checkoff authorization form. The Administrative Law Judge found that Alle committed an unfair labor practice when it violated the employee’s Section 8(a)(3) and (1) rights under the National Labor Relations Act (“NLRA”) when it terminated they employee for refraining from becoming a member of the union and/or declining to sign the checkoff authorization form. The full NLRB then considered the matter and the ruling from the Administrative Law Judge.
Analysis: The Administrative Law Judge (and NLRB) recognized that there is a line of precedent which stipulates that “the Act [NLRA] guarantees to each employee the right to determine for himself, free from coercion, whether he shall sign a checkoff authorization form or not.” Consequently, the employee’s refusal to sign the checkoff authorization form prior to and during the meetings qualified as protected activity under the NLRA.
Turning to whether the employee’s statements/outburst forfeited the protections of the NLRA, the four factor test from the NLRB’s 1975 Atlantic Steel Co. decision was considered. To determine whether an employee’s conduct forfeited the protections of the NLRA, four factors are analyzed: 1) the place of the discussion; 2) the discussion’s subject matter; 3) the nature of the outburst on the part of the employee; and 4) whether the outburst was provoked by the employer’s unfair labor practices. Let us take a look at each:
The Place of the Act
At the meeting in which the employee’s outburst occurred, it took place in the manager’s office, away from other employees. Only managers or supervisors were present, rather than co-workers. Based upon the evidence in the record, there was no indication that other employees saw or heard what occurred. As a result, it was held that the employee’s outburst did not occur in front of other employees which would have been more difficult for Alle to tolerate.
The Subject Matter of the Discussion
The whole purposed of the meeting was to discuss the employee’s refusal to sign the checkoff form. As the employee had long been against joining the union and refused to sign the form on several occasions, his outburst occurred during his “attempted assertion of a fundamental right under the Act [NLRA].”
The Nature of the Outburst
While the NLRB did not condone or approve of the employee’s obscene gesture or comments, it recognized that Alle had no policy against profanity and had previously tolerated profanity by employees (even when it had been directed toward supervisors.) Interestingly enough, the NLRB found that the employee’s comment that he was a “streets guy” to be too vague to amount to a threat.
Whether the Outburst Was Provoked
The NLRB agreed with the finding of the Administrative Law Judge that the employee’s conduct occurred as a result of coercive conduct by Alle. A line of precedent has held that attempts to coerce an employee to execute a checkoff authorization form constitutes a violation of Section 8(a)(1) of the NLRA.
The Takeaway: Let us remember that the NLRB is not giving workers the green light to flip tables, denigrate their employers with profanities, and go ballistic in the workplace without risking losing the protections afforded under the NLRA. Instead, the court factor test from Atlantic Steel Co will be applied to the facts of a given case to see if the protections of the NLRA were forfeited. In this instance I think the Administrative Law Judge and NLRB got it right...but as noted, each situation is different and “results may vary.” Workers: take heed.
Date: April 2, 2020
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