By Brandi O. Brown, J.D.
The NLRB misapplied Wright Line precedent when it held the General Counsel need not establish a nexus between an employee’s discharge and an employer’s antiunion animus, the Eighth Circuit ruled, denying the Board’s petition for enforcement in a case involving an employee who was fired for internet surfing and sleeping on the job. The appeals court also rejected the Board’s finding that the employer separately violated the Act when it interviewed the employee’s coworker in preparation for the hearing, noting it had previously rejected the agency’s “per se” rule that interviews conducted of another employee in preparation for a Board hearing are unlawfully coercive (Tschiggfrie Properties, Ltd. v. NLRB, July 24, 2018, Benton, W.).
Surfing on the job? Employees of Tschiggfrie Properties, Ltd. were unionized in 2015, in large part based on the efforts of one employee. That employee frequently discussed the union, which led to some complaints by coworkers that he “harass[ed]” them while at work. The company president issued the employee a written warning, reprimanding him “for discussing union organizational viewpoints with fellow employees during work” and order him to “stop immediately.” Six weeks later, the employee was fired on the spot after his manager found his laptop open to personal websites while on the clock. Later, the manager testified that the employee’s sleeping on the job also factored into the discharge decision.
Unfair labor practices. The union filed Board charges contending that his discharge (and the written warning) violated the Act. The General Counsel filed a complaint and scheduled a hearing. In preparation, the employer twice interviewed one of the employee’s coworkers, and the General Counsel amended the complaint to allege that those interviews were coercive, and amounted to an additional violation of the Act. The ALJ found that the written warning and discharge were unlawful, but not the interviews. The Board adopted the findings with regards to the written warning and discharge, but also found that the interviews violated the Act. The employer petitioned for review of the Board’s findings regarding the discharge and the allegedly coercive interviews.
Burden misapplied. The ALJ had reasoned that the General Counsel was not required to show a connection between the employer’s antiunion animus and the adverse job action. The Board adopted this analysis, reiterating that there was no “nexus element” to the General Counsel’s initial burden under Wright Line. This was error: the General Counsel was required to connect the employee’s discharge to the employer’s antiunion animus.
The Eighth Circuit’s 2015 opinion in Nichols Aluminum, LLC v. NLRB was controlling. In that case, the appeals court reaffirmed that the General Counsel could meet its initial Wright Line burden only if it proved “that the employee’s protected conduct was a substantial or motivating factor in the adverse action.” That requirement, the court explained, “is consistent with the statutory requirement” that the General Counsel carry the burden of proving an unfair labor practice. As such, it was not enough simply to show antiunion animus. The Eighth Circuit remanded the case for the Board to consider whether the General Counsel satisfied his Wright Line burden of establishing that the employee’s union activities were a motivating factor in his discharge.
Per se rule rejected. Nor was the Board’s finding with regards to the coworker interviews supported by substantial evidence. The ALJ properly considered the totality of the circumstances and concluded that no violation had occurred. However, the Board determined that questioning the coworker was per se coercive because it was done in preparation for the hearing, and the employer did not provide the employee with express assurances against reprisals or let him know his participation was voluntary. However, the Eighth Circuit had “never endorsed this per se rule” and had declined to enforce it in the precedent cited by the Board. Other circuits, the appeals court noted, had also expressly rejected the per se rule, and the Board’s arguments in favor of such safeguards were not compelling.
Looking at the facts presented, the appeals court concluded that substantial evidence did not support enforcement, as the questioned employee’s testimony belied the coercive effect of the interview. The questions asked were mostly about whether he had seen the employee sleeping or using his personal computer on the job, and there was no evidence he feared reprisal.
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