Labor & Employment Law Daily Manager’s angry ‘get back to work’ order to employees on heat breaks wasn’t implicit threat
Friday, December 7, 2018

Manager’s angry ‘get back to work’ order to employees on heat breaks wasn’t implicit threat

In a case involving California workers who worked in steel shipping containers and began jointly taking heat breaks when the weather became too hot, the NLRB affirmed an administrative law judge’s determination that a manager coercively interrogated an employee and told him to bring his work-related concerns directly to management. The Board also agreed with the ALJ’s determination that observation reports documenting the employees’ heat breaks did not violate the NLRA, but reversed the judge’s determination that the manner in which the manager angrily ordered employees to back to work was implicitly threatening and aimed at stopping them from taking heat breaks (Orient Tally Co., December 4, 2018.).

Confronted about flyer. The employer operated a warehouse and yard in Wilmington, California, where it employed workers to load, unload, and sort merchandise stored in steel shipping containers that were located outdoors. In early 2015, a group of the employees who spent much of their time inside the containers became involved in activities supported and organized by Warehouse Workers United (WWU), which filed a complaint against the company in June that resulted in an OSHA inspection. In July, managers confronted a WWU-affiliated employee who had been quoted in a flyer distributed to workers as complaining about the working conditions, telling him to bring any concerns to management and not elsewhere.

Questioned about heat breaks. In mid-August, several of the employees began jointly taking heat breaks, relying on California law allowing such breaks under certain circumstances. Two managers questioned them about their heat breaks and the general manager angrily ordered them to get back to work. The company also issued observation reports to employees over the next several weeks which documented the heat breaks.

The ALJ found that the heat breaks were protected concerted activity and that the employer violated Section 8(a)(1) when two managers questioned employees about their heat breaks on August 18. The judge also found that the general manager implicitly threatened employees with unspecified reprisals that same day when he angrily ordered employees to return to work. However, the employer did not act unlawfully by issuing observation reports that documented the employees’ heat breaks.

Unlawful questioning. The NLRB agreed with the ALJ’s finding that the employer violated Section 8(a)(1) by coercively interrogating the employee in July and directing him to bring his work-related complaints to management and therefore ordered the company to cease and desist from coercively interrogating its employees. The Board thus found it unnecessary to pass on the judge’s similar finding about the August questioning of the employees regarding heat breaks since such a finding would not affect the remedy and would be merely cumulative. The Board similarly found it unnecessary to pass on the ALJ’s predicate finding that the joint heat breaks constituted protected concerted activity.

No implicit threats. The NLRB also reversed the ALJ’s finding that the general manager implicitly threatened employees with unspecified reprisals. The evidence showed that several minutes after the employees started a heat break on August 18, the manager confronted them in a physically aggressive manner and loudly ordered them to return to work. The ALJ found that his manner was implicitly threatening and calculated to cause them to cease engaging in heat breaks. However, the Board ruled that this wasn’t an implicit threat since the manager didn’t make any statement suggesting that adverse action would be taken against them but simply ordered them to return to work. That he did so “loudly and aggressively” did not convert his order into a threat and there was no indication that he suggested what he might do in the future.

Observation reports not coercive. The employer also did not violate the NLRA by issuing reports to employees documenting their heat breaks. In finding that the reports were not coercive, the ALJ had relied upon evidence that the employees were repeatedly assured that the reports were only observation reports and not disciplinary warnings. The Board also relied on those assurances, but also found that the reports themselves would not reasonably be understood as disciplinary in nature.

The reports stated in bold at the top: “EMPLOYEE WARNING REPORTS” and below that was a section headed “IMMEDIATE TERMINATION VIOLATIONS,” which contained a list of serious offenses with a box next to each offense to mark, if applicable. A double line of asterisks separated these serious offenses from lesser offenses, again with a box next to each offense to mark, if applicable. Below the less serious offenses was “Other Observation Report,” again with a box to mark if applicable, and this was followed by a section for “EMPLOYER/SUPERVISOR REMARKS.” The form next stated that “Any Further Incidents of this Type Could Result in Further Disciplinary Action Up To and Including Suspension and/or Termination.” Below this was an area for an employee to write and sign his or her remarks, boxes to check to indicate the type of “ACTION TAKEN” by the supervisor, and a line for an explanation of the action taken.

Must be viewed as a whole. Viewed in isolation, some of the pre-printed language on the forms arguably suggested that they were disciplinary in nature. However, the record showed that before issuing the reports to employees, managers consistently marked the box for “Other Observation Report” and merely noted, under “Employer/Supervisor remarks,” the employee’s request for a heat break and the duration of the break. They did not mark any of the boxes for “Immediate Termination Violations,” for any of the lesser violations, or for “Action Taken.” Therefore, viewed as a whole, the documents issued to employees did not reasonably tend to create the impression that they were disciplinary in nature.

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