When is Disciplining an Employee an Unfair Labor Practice?

Robert E. Byrne, Jr.
Robert Byrne, Jr.

Most employers have a certain level of comfort making employment-related decisions.  Those employers assume, after all, that all employment is at-will and the employment relationship can accordingly be terminated at any time, for any reason, or for no reason at all.  Human resource professionals recognize that terminating or disciplining an employee is a little trickier proposition than this, and those professionals have to ensure that negative employment decisions do not violate any of the intersecting federal, state, and local statutes and regulations regarding employment law and employment discrimination.  But employers need to be aware of an additional consideration beyond antidiscrimination statutes: the possibility that taking disciplinary action against an employee will constitute an Unfair Labor Practice under prevailing labor laws.

As an overview, the National Labor Relations Board (“NLRB”) enforces the terms of the National Labor Relations Act (“NLRA”), a federal statute that grants employees the right to engage in “concerted activities,” to self-organize into unions, to collectively bargain with their employers, and to engage in other collective activities regarding the terms and conditions of their employment.  These collective rights are oftentimes referred to as “Section 7” rights under the NLRA.

To solidify these rights, Section 8(a) of the NLRA imposes restrictions on certain management activities, namely prohibiting employers from engaging in a number of “unfair labor practices.”  The main five unfair labor practices under Section 8(a), are, in a nutshell:

(1)  interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in section 7;

(2)  dominating or interfering with the formation or administration of any labor organization or contribute financial or other support to it;

(3)  discriminating in regard to hiring, tenure of employment, or any term or condition of employment as a way to encourage or discourage membership in any labor organization;

(4)  discharging or otherwise discriminating against an employee because he or she has filed charges or given testimony under the NLRA; and,

(5)  refusing to bargain collectively with employee representatives of his employees.

Some of these unfair labor practice provisions appear fairly straightforward, but application is oftentimes far different than theory.  That is particularly true for number 1 above, known as a Section 8(a)(1) violation, which generally prohibits interference with Section 7 rights.  Section 8(a)(1) is phrased pretty broadly, so employers that terminate employees engaging in certain activities — even when the employees in question are not part of a union and the employer runs a nonunion facility — may commit unfair labor practices and have to defend an unfair labor practice charge from the NLRB.

This is perhaps best illustrated by the NLRB’s case against a North Carolina long-term care facility, White Oak Manor.  In that case, an employee wore a hat to work for several days to cover a “terrible haircut.”  Management eventually notified the employee that wearing a hat was not permitted in the workplace and that it violated the company’s dress code policy.  The employee refused to remove her hat.  Management informed the employee that she would have to leave if she continued to wear the hat, and the employee left for the day.  The employee returned the next day, complained of unfair treatment as compared to other employees who wore hats, and the employer wrote the employee up for insubordination.

The employee then noticed a host of other employee dress code violations that were not enforced at the facility, including other employees wearing hats, and the employee enlisted the support of the other employees to address this perceived inequity.  In addition, the employee took photos – in violation of company policy – of other employees’ dress code violations that went unchallenged by management.  The employer eventually terminated the employee, citing the employee’s unauthorized photographing of other employees in the workplace, a policy that had never before been enforced.

To assess whether this employer committed an unfair labor practice, the NLRB examined four factors:

(1)  Whether the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act;

(2)  Whether the employer knew of the concerted nature of the employee’s activity;

(3)  Whether the concerted activity was protected by the Act; and

(4)  Whether the discipline or discharge was motivated by the employee’s protected, concerted activity.

Based on an analysis of these factors, the NLRB found that the employer committed an unfair labor practice by terminating the employee’s employment for what was protected activity under the NLRA.  This termination, the NLRB determined, constituted an unlawful interference with the employee’s right to engage in collective activity about the terms and conditions of her employment because the employee had collectively engaged with other employees to address inequities with the employer’s internal policies.  The employer appealed the decision and, perhaps somewhat surprisingly, the decision was upheld by the U.S. Circuit Court of Appeals for the Fourth Circuit, which has traditionally been viewed as a conservative appellate court.

This case well illustrates some of the proverbial landmines employers face when disciplining employees, even if the employer has the legal right to rely upon the employment at will doctrine.  The employer may have for-cause grounds for terminating an employee for the employee’s actions, but if the employer does not consistently enforce its policies against similar, prior activity by other employees, the employer’s adverse employment action will likely be considered an unfair labor practice if the employee engaged other employees to challenge the fairness or perceived justice of the policy at issue.  This is true even if the workplace is non-unionized, and the employer’s actions otherwise seem perfectly justified by the employment at will doctrine.

In this day and age, most employers are aware that they may not take unlawfully discriminatory adverse employment action against employees.  But human resource professionals and managers must not just be mindful of whether employment actions run afoul of established anti-discrimination statutes and regulations, they must consider whether their actions potentially violate lesser known unfair labor practices rules under the National Labor Relations Act.  In addition, and perhaps more importantly, employers must ensure they have proper policies in place to ensure they minimize the possibility of a ULP charge.  The NLRB has demonstrated a renewed interest in enforcing these types of actions, and employers need to take notice and be properly informed to avoid these violations of labor law.

Robert E. Byrne, Jr., the author of his post, is a Virginia Employment Law Attorney who practices labor and employment law, employment counseling, and business litigation with the Charlottesville office of the Virginia law firm MartinWren, P.C.  Bob has a statewide practice and, in addition to counseling management on labor law and employment law issues, he can represent employers accused of unfair labor practices in NLRB proceedings, EEOC matters, and in state and federal trial and appellate courts.  For more information, or to contact Bob about his services in these areas, please contact him at (434) 817-3100, or, if you prefer, by email at byrne@martinwrenlaw.com.

For more information about the big picture of employment law, please see Bob’s article, Sources of Employment Law.  This article, as well as any other articles or information on the MartinWren, P.C website and blawg, is for informational purposes only and does not constitute legal advice.

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