Labor Law Weather Report: Overcast with Changing Winds

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We've all been watching for signs of change on the employment law front, given the new administration. Bear in mind that the National Labor Relations Board (NLRB) has been operating with only 2 of 5 members, as the presidential appointees (both union-side labor lawyers) have yet to be seated. Consider the following.

You own a non-union trucking company and you initiate a new policy changing the way you will pay your truck drivers, offsetting what you owe them for loads they deliver by accounting for a fuel surcharge. Your drivers complain about it. After listening to them vent, you tell them that, in the end, if they don't like it they can "clean out their truck." That's code, in trucker-speak, for "pack up and leave." After their initial anger, all but one of the employees grudgingly go about their business. One employee, however, continues grousing.

Two and a half months later, he's still torqued off, stops in to see the secretary at your office and wants to know just how she's calculating the surcharge, and why it can't be shown on his paycheck stub. She tries to explain, but he's not getting it. The door to your office is open and he troops in to complain to you about it. The secretary follows him in. In the middle of his rant, the secretary suggests that he clean out his truck and leave if he doesn't like it. His reaction is to get up from his chair and take a step towards her. You intervene and tell him that it is a good idea for him to clean out his truck and leave. Three years later you find yourself re-hiring him, and paying him three years of back pay, plus interest (not to mention the legal fees you spent fighting him).

That is what actually happened to a fellow named Piester, the owner of the trucking company. The Fourth Circuit just upheld the two-member NLRB, who ruled for the employee. You see, even though there was no union, Mr. Piester fell into the little known trap that an employer cannot fire or threaten to fire employees when they act in a concerted manner in their mutual interests. Aside from that lack of awareness, we think most managers or business owners we know would have acted very much like Piester did. What's surprising is that our federal appeals court upheld the NLRB on these facts.
Here's the law. Section 7 of the National Labor Relations Act (NLRA) guarantees employees not only the right to self-organization, to form, join, or assist labor organizations, and to bargain collectively, but it also protects the right to engage in other concerted activities for the purpose of their mutual aid or protection even if there is no union. Another section of the law, Section 8(a)(1), implements these guarantees by making it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under the NLRA. The complaint in this case alleged that Piester violated Section 8(a)(1) by impliedly threatening to discharge his employees if they continued to engage in protected, concerted activity, and later by then actually discharging the driver for engaging in such activity.

Obviously, Piester had every right to change his policy and invoke the fuel surcharge offsetting what he had paid his employees. He didn't have to bargain with any union. But when his employees all reacted and complained about the change, they were protected under the National Labor Relations Act because they were acting together in their mutual aid about a new working condition. Piester's first mistake was telling his workers they could "clean out their truck" if they didn't like the policy. Those words were held to be an implied threat tantamount to threatening discharge for complaining.
Even though it was 2 ? months later when the truck driver (a guy named Chapman), unaccompanied by any co-worker, came to Piester's secretary to complain, the NLRB concluded that Chapman was still acting in a concerted manner not individually. Understand that a complaining employee, acting solely on his own, and not claiming to be acting for others, is not protected under the law. In this case, Chapman did not speak for the others, and didn't claim to. Nonetheless, the NLRB felt that his complaint was still connected to the policy change, even though he may have actually been complaining only that he wanted the fuel surcharge shown on his paycheck stub.

You may be asking whether Chapman's act of standing up in apparent anger and taking a step towards Piester's secretary was grounds for discharge. The NLRB's two members found that Chapman's act really was not a threat sufficient to leave Chapman unprotected by the law. Applying existing law, the NLRB reasoned that no other truck driver witnessed the step because it was done in Piester's office and only in front of his secretary. Thus, it did not amount to a public challenge to Piester's authority. Further, the NLRB said Chapman's actions were relatively mild and brief, and it was actually provoked by the secretary's suggestion that Chapman could clean out his truck if he didn't like it. After all, the NLRB concluded, she was in effect acting as Piester's agent when she made the comment. Note: We are not making this up.

Piester's lawyers had argued that Chapman's position in the case was tantamount to a bright-line rule that an employer acts illegally any time it suggests that its employees can quit if they do not like an objected-to decision. That argument, however, fell on deaf NLRB ears. What's more, with the exception of a dissenting judge, it fell on deaf ears at the appeals court level as well.

We believe that many employers would have acted the same way towards Chapman. Moreover, if this two-member Board is inclined this way, look out when the new presidential appointees get there.