Protected Concerted Activity Strikes Again: Worker’s Firing Unlawful

April 18, 2016

In this case, the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) enforced an order in which the National Labor Relations Board (NLRB) found an employer violated the National Labor Relations Act’s (NLRA) prohibition on interfering with employees’ Section 7 rights. The case serves as another illustration of how the NLRA applies to employees in nonunion workplaces who act together to improve their working conditions.

Factual Background

Staffing Network Holdings, LLC, is a staffing agency that provides companies with temporary and long-term employees. Staffing Network operates at freestanding locations and on-site at its clients’ premises. ReaderLink is an on-site client of Staffing Network that fills book orders for other businesses.

Staffing Network provided approximately 80 full-time employees to Reader-Link, including an on-site manager, Andy Vega, and a staffing assistant, Monica Amaya, as well as pickers, who work side-by-side on the production line filling orders, and stockers, who ensure that pickers have an adequate supply of books to fill orders. Griselda Barrera was one of the pickers at the ReaderLink facility. She began her employment with Staffing Network in 2004 and had worked at ReaderLink for eight years.

On November 15, 2012, Mari Perez, an in-house supervisor employed directly by ReaderLink, told Vega that two of the stockers were not working quickly enough. Vega asked both stockers to work more quickly. When one of the stockers, Juan, replied that he wouldn’t work any faster for $8.25 an hour, Perez told Vega to send him home. Vega complied.

Vega’s actions caused an immediate reaction among several women on the line, including Barrera and Olga Gutierrez. They asked why Juan had been sent home and told Vega he couldn’t keep up because he was new on the job. Vega responded that Juan’s attitude had also been part of the reason he was sent home.

Barrera, Gutierrez, and the other women told Vega that it wasn’t fair. Vega responded that it wasn’t their concern, they should get back to work, and they also could be sent home for their attitude. He then left the area.

Vega returned a short while later, angrily and repeatedly asking Barrera if everything was OK and stating that he could send her home if she had an issue. Barrera asked him if he was threatening her and said something about sending a letter to the Department of Human Rights. Vega told Barrera to get her things and go home.

Barrera initially refused, which resulted in another angry outburst by Vega, with him raising his voice, pointing a finger at her, and stating, “Let’s see if you’re not leaving.” Gutierrez and others came to Barrera’s defense, saying she had done nothing wrong. Vega left and returned to his office.

Vega then directed Amaya to tell Barrera to go home. Amaya went to the production line and told Barrera to leave, adding that if she didn’t leave, Vega intended to have security guards escort her out. Again, the other women came to Barrera’s defense, explaining that she had done nothing wrong and Vega had been rude. Amaya said there was nothing she could do. Barrera left the work area with Amaya, turned in her radio headset, and waited in the cafeteria for her ride.

Amaya initially told Barrera to leave for the day. Later that day, Barrera texted Amaya to ask if she could return to work the next day. After asking Vega how she should respond, Amaya texted back that Barrera would have to speak with Vega about what happened that day and she should not return to work.

Barrera surmised that she had been terminated and applied for unemployment benefits. The Illinois Department of Employment Security sent an information request to Staffing Network about her unemployment claim. Vega and Amaya responded to the request. In response to a question about Barrera’s current status with the company, they checked the box for “involuntary separation.”

Vega and Amaya also provided a description of the events that took place on November 15 in response to a question about the reason, policy violation, dates, and details of prior warnings and written documentation of the final incident, including the name and title of the person who terminated the employee. Noting on the form that Barrera had been placed on the “Do Not Return” list for the ReaderLink account, they indicated that she would nevertheless be considered for future assignments with any account other than ReaderLink.

Staffing Network never told Barrera that she hadn’t been terminated, nor did the company tell her that she could return to work at ReaderLink or any other location. Barrera was ultimately awarded unemployment benefits.

Unfair Labor Practice Litigation

Barrera filed an unfair labor practice charge with the NLRB, and the General Counsel issued a complaint alleging that Staffing Network violated the NLRA. According to the complaint, Staffing Network had twice threatened to discharge employees for engaging in protected concerted activity and had discharged Barrera because of her protected concerted activity.

An administrative law judge (ALJ) determined that Staffing Network had violated the NLRA as the General Counsel alleged. He ordered Staffing Network to reinstate Barrera with back pay and benefits, cease and desist threatening to discharge or discharging employees for engaging in protected concerted activity, and post a notice informing employees of their rights and summarizing the outcome of the proceedings.

On appeal, the NLRB affirmed the ALJ’s findings and adopted his order. Staffing Network petitioned the 7th Circuit for review of the Board’s decision, and the NLRB cross-petitioned for enforcement of its order.

7th Circuit’s Decision

Staffing Network asserted that the NLRB erred in finding that Barrera was terminated. In the alternative, it argued that if she was terminated, the Board erred in concluding that it was prohibited by the NLRA from terminating her. Staffing Network also asserted that the NLRB erred in finding that it had unlawfully threatened employees on November 15, 2012. Reiterating that its review of NLRB findings is deferential, the court denied Staffing Network’s petition for review and enforced the Board’s order.

The court easily concluded that there was substantial evidence supporting the NLRB’s determination that Barrera was terminated, and it characterized Staffing Network’s claim that she wasn’t terminated as frivolous. The court found that the Board was justified in relying on the company’s own “smoking gun admission” in which its supervisors responded to the state’s unemployment inquiries by checking the box for “involuntary separation.”

Staffing Network’s response to the state also supported the conclusion that it had threatened employees and terminated Barrera for engaging in protected concerted activity. The court looked to Staffing Network’s response as providing another veritable smoking gun, this time on the reason for Barrera’s termination.

Section 7 of the NLRA provides employees with the right to self-organization; to form, join, or assist labor organizations; to bargain collectively with representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRA also provides that employers may not interfere with, restrain, or coerce employees in the exercise of those rights.

Threatening employees with discipline or discharge for engaging in concerted activity protected under Section 7 is a violation of the Act. Threats to discipline or discharge, along with the act of disciplining or discharging, reasonably tend to coerce employees in the exercise of their rights, regardless of whether those actions do, in fact, coerce. The tendency to coerce is judged from the viewpoint of the employee.

Applying those principles to the case, the court easily found substantial evidence to support a conclusion that the NLRA was violated. In its response to the state’s inquiry about the reason for Barrera’s separation, Staffing Network explained that after a stocker was told to speed up his work, Barrera objected and then began talking to some of the other pickers in the line, disrupting production. Vega also indicated that after Barrera was told to punch out and go home if she didn’t want to work, she ignored the request and continued to get the line employees worked up, saying the company was going against the law and they had to stand up against all the injustices it was committing.

The court found that Staffing Network had essentially admitted to the relevant facts supporting the NLRB’s conclusion. Brief work stoppages are a form of economic pressure entitled to protection under the NLRA, and that was the type of action Vega described to justify Barrera’s termination. Witness testimony also supported a finding that she was terminated because of her protected concerted activity in protesting Vega’s treatment of Juan related to the terms and conditions of employment.

Vega’s threats to discharge the workers were also found unlawful. The pickers’ temporary work stoppage and complaints about Juan’s treatment were protected concerted activity. Vega responded by telling them to get back to work and that what happened to Juan wasn’t their concern. He threatened that they would be sent home for their attitudes if they didn’t comply. He also threatened Barrera and ultimately followed through on his threat by terminating her employment. Staffing Network Holdings, LLC v. National Labor Relations Board, Nos. 15-1354 & 15-1582 (7th Cir., 2016).

Bottom Line

Protecting employees’ rights to engage in protected concerted activity continues to be a focus of the NLRB, and courts will enforce the Board’s orders when there is evidence to support a violation of employees’ rights. You should consult legal counsel before taking employment action when protected concerted activity might be involved.

This case also serves as a reminder to take care when you respond to unemployment inquiries, which are often the first type of claims filed by terminated employees. Responses and testimony can later be used as admissions against your interests in future litigation, whether it’s before the NLRB or the local, state, or federal agencies that enforce discrimination laws.

This article, slightly modified to note recent updates, was featured in the April 2016 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

Leslie Sammon
Leslie Sammon