PUBLICATIONS

 

The Fourth Circuit Court of Appeals recently enforced an order of the National Labor Relations Board (NLRB or the Board), finding that an employer violated the National Labor Relations Act (NLRA) by terminating a union salt for alleged dishonesty. See Integrated Elec. Servs. d/b/a Primo Elec., 4th Cir., No. 05-2289, unpublished opinion 2/13/07. The decision by the typically conservative court illustrates the risk in being overzealous in enforcing workplace rules in order to eliminate open union supporters and thereby thwart organizing activity.

 

In this case, IBEW member William Hughes agreed to work as a “salt” in an effort to organize employees of Integrated Electrical Services. Shortly after being hired by Integrated, Hughes appeared at work wearing an IBEW tee shirt with text inviting other employees to ask him about the benefits of union membership. A company foreman demanded that Hughes remove the shirt and sent him home when he refused to do so. Thinking better of the action, a company representative telephoned Hughes at home and told him that the foreman had made a mistake, that he could wear his union tee shirt at work, and that he would be paid for the day.

 

Hughes was undoubtedly emboldened by this company about-face. He returned to work and continued his organizing efforts, talking with employees about the benefits of unionization and distributing organizing materials. He had obtained a CD containing information about union wages and benefits from a union agent, which he gave to a fellow employee. That employee gave the disc to Integrated’s management and agreed to sign a statement saying that Hughes had given him the disc during work time. Management asked Hughes whether he had distributed the disc during work time and, when he responded in the negative, terminated him for “dishonesty.”

 

Before the Board, the company argued that Hughes had lied about distributing the union material during working time, and that such a lie amounted to “dishonesty” under the company’s work rules. Integrated supported its position by presenting evidence of a previous situation in which an employee was terminated for dishonesty in the form of lying. In response, Hughes asserted that he did not distribute any union material during working time, and supported his assertion by producing a daily log that detailed his organizing activity. The Board credited Hughes’s testimony over that of the company witnesses, distinguished the situation involving the other employee terminated for dishonesty, and found the reason for his termination to be pretextual. The Board found that Integrated had violated Sections 8(a)(1) and (3) of the NLRA, and ordered the company to offer Hughes reinstatement, with back pay and benefits.

 

Integrated filed a petition for review with the court of appeals and the Board cross-petitioned for enforcement of its Order. The court found that the Board’s decision was supported by “substantial evidence” and therefore enforced the Order.

 

Although this is an unpublished decision, which means it is not binding legal precedent, this case provides a good example of an employer’s overzealous enforcement of work rules against organizing activity backfiring against the employer. The initial decision to send the employee home for wearing a union tee shirt suggests that the company had not done a good job training its supervisors on the basic “do’s and don’ts” of management. Employers need to be careful not to overreach in responding to organizing activity, and to be thorough with respect to documentation. As unions push for card check recognition, with a likely increase in aggressive card signing tactics, this is a particularly important issue of which to be aware.

 

For additional information regarding union organizing tactics and suggested employer response, please contact the author of this Alert, Charlie Feuss, a partner in Ford & Harrison's Minneapolis office, cfeuss@fordharrison.com, 612-486-1702, or the Ford & Harrison attorney with whom you regularly work.