Time-Warner's investigation into cable-guy demonstration may not have violated labor law

Time Warner has won its challenge to an NLRB ruling that said the cable company violated federal labor law in questioning employees who took part in a strike that the collective bargaining agreement had prohibited. Well, the company kind of won, as the case is remanded to the NLRB.

The case is Time Warner v. NLRB, issued on December 10. The contract said that employees cannot go on strike. That ensures that the cable guy can make it to your house on time when the cable goes out. But employees struck after the company suspended several foreman who violated a company directive regarding when and where employees were allowed to carry tools. The strike led to a disruption that trapped service trucks in the Time Warner facility for an hour-an-a-half, causing a "ripple effect" of delayed or missed service appointments. Time Warner then investigated the strike by questioning employees who were responsible for the demonstration and resulting disruption.

The union challenged Time Warner's post-demonstration investigation, claiming the interrogations were coercive in violation of the National Labor Relations Act and that the suspensions arising from the strike constituted improper punishment for protected union activity. The NLRB agreed with the union in part, finding that while the strike was unprotected activity and the resulting suspensions were unlawful, the company had asked coercive questions, including "who told you about this gathering," "when did you receive notification about the gathering," and "how was this event communicated to you." The Board said there was no reason for the company to ask about pre-demonstration events except to identify people who had participated in the demonstration.

The Second Circuit (Leval, Livingston and Wesley) reverses and finds for Time Warner, remanding the case to the NLRB to reconsider the case. It seems the Board did not apply the right legal standard in assessing these questions. The Second Circuit says the following:

the Board's standard barred Time Warner from seeking information of very high pertinence to its investigation of the unprotected demonstration. By allowing no inquiry into any conduct preceding the demonstration except to identify "actual participants," the Board disallowed highly relevant inquiry into identification of those deserving of discipline and into making appropriate distinctions among them. For example, it prohibited Time Warner from seeking to identify those most responsible for the unauthorized stoppage because they suggested it, argued in its favor, or solicited or directed others to participate in it, regardless of whether those persons also participated in the stoppage. It also barred Time Warner from seeking information that would distinguish between those employees whose presence at the demonstration was less culpable, because they had attended based on a belief that it was a meeting about workplace safety and Weingarten rights, from those who were more culpable, because they attended for the purpose of participating in the unprotected stoppage.

In sum, the company had a legitimate interests in learning more about who exactly were the actual participants in the demonstration.

Employment of a standard that so narrowly constrained Time Warner's inquiry as to bar questions seeking any information other than who were actual participants in the unprotected work stoppage compelled the conclusion that Time Warner's more open-ended questions interfered improperly with Section 7 rights. Because that conclusion was arrived at through use of an unsubstantiated standard, we hereby set aside the Board's conclusion, not because we have reached any determination about the correctness of its result, but because the result was determined through use of an unjustified standard (at least as narrowly interpreted by the Board here). The mere fact that planning of the unprotected work stoppage may have occurred in conjunction with and alongside planning for a protected meeting (or other protected communications) does not necessarily compel the conclusion that the inquiry was an unlawful interference into protected activity.