In an interesting display of seeming uncertainty, the NLRB’s Division of Advice recommended the dismissal of an unfair labor practice charge against an employer. In this case, a union alleged that an employer unlawfully threatened its employees over a flyer containing statements that the worksite was contaminated with toxic, unhealthy chemicals. In an effort to pressure the employer into caving to their bargaining demands, union representatives and employees handed out the controversial flyers to customers and taped them to the windshields of several cars parked in the lot. The flyer purportedly issued by a fictitious “Coalition for Safe Environment and Good Jobs” (and not the union), contained in large bold print –
“CAUTION! Toxic Waste?” “Nausea Headaches Vomiting”
“Not only does [the employer] need to clean up its land, it
needs to clean up the way it treats its workers and the community.”
The trouble was that the land was not owned by the employer. Understandably upset by the potentially adverse effect that the flyer could have on its parking lot business, the employer ordered him and the others to stop distributing the flyers because the business was losing parking customers. The shop steward refused, leading the employer to distribute a memo to employees prohibiting distribution of the flyer and threatening disciplinary action up to and including termination for anyone who disobeyed the directive. Although no employees were ever actually disciplined, the union filed a charge with the NLRB alleging interference with employees’ rights to engage in concerted activities for “mutual aid and protection.”
Despite the current Board’s undeniable efforts to broaden employees’ rights, the law remains that concerted activity loses protection if it is “exceedingly disloyal or recklessly or maliciously untrue.” Thus, the ultimate question in this case was whether the employees’ leafleting activity was protected in light of the seemingly disloyal and/or untrue nature of the statements contained on the flyer.
True? Close Enough
Turning first to the question of whether the statements were maliciously or recklessly untrue, the General Counsel concluded that, based on findings by the state EPA that heightened levels of toxic, unhealthy chemicals existed in the worksite’s soil, the employees had a reasonable basis for the content of the flyer asserting that the worksite was dangerous.
Disloyal? Maybe
The disloyal nature of the statements, however, was a much closer call and required an examination of several factors to determine whether the statements were “designed to publicly harm the employer in a manner that did not further the employees’ position in the dispute.” Noting that the flyer “significantly disparaged” the employer’s product (i.e., a safe place to park), was not expressly authored by the union, and did not specifically request any action on the part of the public or seek support for the employees in the labor dispute, the NLRB’s General Counsel acknowledged that the employees’ activity was very close to being disloyal.
But instead of allowing the charge to go through the normal hearing process to reach a decision by the NLRB on the issue of employee disloyalty, the General Counsel recommended dismissal of all allegations, stating that because no employee had been disciplined for distributing the flyer “it would not effectuate the policies and purposes of the Act to issue a complaint in this case.”
Although this technically is a “win” for this employer, one cannot help but take note of the General Counsel’s conspicuous efforts to avoid reaching a firm conclusion that the employees’ activity truly was disloyal. Apparently, “too close to call” may be as good as it gets for employers these days.
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
