Thursday, July 11, 2019

Court of Appeals second-guesses the NLRB in union retaliation claims

When management finds out that someone in the workplace is trying to unionize, they often don't respond well. Which is why we have the National Labor Relations Act. When the union organizer believes the employer is retaliating against him for trying to unionize, he can go to the National Labor Relations Board. If the NLRB rules for the employee, then management can appeal to the Second Circuit, which usually gives the NLRB the benefit of the doubt in these cases. That's not quite what happened here.

The case is Bozzuto's Inc. v. National Labor Relations Board, issued on June 24. Two employees, Greichen and McCarty were trying to start up a union at Bozzuto's, which operates wholesale warehouses in Connecticut. Word got out what these guys were up to. A senior Vice President approached McCarty and asked him "what's going on with this Union stuff?" After management issued a memo to employees that they did not really need a union and that management was looking out for their best interests, Greichen was written up for alleged performance deficiencies and "scary" workplace demeanor. Greichen then got himself fired when he refused to attend a meeting following his comments that management was "screw[ing] the associates." As for McCarty, he continued with the union organizing even after Greichen got canned, and management then accused him of performance deficiencies also, resulting in his termination. McCarty disputed those allegations. After the NLRB ruled in favor these employees, Bozzuto's appealed to the Second Circuit (Kearse, Livingston and Carney), which affirms.

These cases make their way to the Second Circuit at least a few times per year. The Court of Appeals usually defers to the NLRB's judgment in these matters (but not always, as demonstrated by this case), reiterating that it is illegal to retaliate against workers for their union activity. A few longstanding rules arise in this case. First, while management is allowed to speak with employees about the union organizing, it cannot threaten the employees over it. As for McCarty, the employer actually did not break the law when it asked about the "Union stuff."  After taking apart the evidence on this issue, the Second Circuit finds this inquiry was not a coercive gesture but instead a passing question. This case is probably the definitive Second Circuit ruling on how to interpret managerial inquiries like this. That's good for management in general, but the employer in this case is not out of the woods, as the Court of Appeals goes on to find that McCarty's termination was retaliatory and therefore unlawful.

Greichen's termination, however, was legal. While the employee did not attend the meeting despite management's request, the evidence does not support the NLRB's finding that the meeting was set up as a pretext to go after Greichen. Rather, this employee was insubordinate in not showing up at the meeting. Like the analysis relating to McCarty, the analysis guiding Greichen's case is involved and a good example of the Court of Appeals digging into the record to ensure the NLRB is doing its job properly.

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