Rate this article:
Average rating:
Total votes: 0
Employee who used profanity and was insubordinate when soliciting coworkers to support a union lost the protection of the National Labor Relations Act and was rightfully disciplined by his employer.
A telecommunications company that issued an employee an oral warning and two written warnings after he solicited coworkers to support the union violated federal labor law with respect to the oral warning but lawfully implemented the written warnings.
The employee, Greg Neubauer, was attempting to gain support for a union that would represent all customer-service representatives at the company. He visited employees at their cubicles, which were all located in close proximity to each other and to their supervisors. After an employee complained about being solicited, a manager gave Neubauer an oral warning, allegedly based on the company’s general policy prohibiting solicitation of any kind during work hours.
After the company lawfully sent employees a memo regarding its views on unionization, Neubauer approached several more employees in their cubicles, using profanity and insubordinate statements towards various supervisors to bolster his position in favor of the union. As a result, the company issued him several written warnings regarding his inappropriate and insubordinate statements about supervisors and his use of profanity. The union filed a charge complaining that all of the warnings violated the National Labor Relations Act (NLRA) and Neubauer’s right to engage in activity in support of the union.
The National Labor Relations Board held that the oral warning was unlawful, because the company only applied its nonsolicitation policy to solicitation about the union. The evidence showed that employees were allowed to sell Girl Scout cookies, candy and other items, even though such actions should have been barred under the policy. However, Neubauer’s right to speak about the union did not extend to the use of profanity or insubordination. The company could lawfully discipline him for his later statements, particularly because they were made in a work area where many employees and supervisors were likely to hear them.
This case demonstrates how the NLRA applies in the workplace. Although Neubauer had the right to solicit for the union even if his actions annoyed coworkers, he lost the law’s protection as soon as his actions and speech became insubordinate and profane.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Cellco P'ship d/b/a Verizon Wireless, 349 N.L.R.B. No. 62, March 28, 2007 [released April 2, 2007)].
Employer who punished female employee who violated company policy worse than male workers who engaged in the same behavior may be liable for gender discrimination.
A longtime supermarket employee who was fired for buying a cake after wrongly marking down its price could move forward on her claim of gender discrimination based on evidence that the store treated male employees who engaged in similar activity less harshly.
The store had a written policy prohibiting employees from giving or receiving unauthorized price discounts; violators could be fired without warning. The plaintiff worked in the bakery department, where store policy allowed employees to mark items at half-price if they remained on the shelves on their “sell-by” date. In this case, the plaintiff admitted that she changed the “sell-by” date on a cake and then marked it half-off so that she could buy it for Valentine’s Day.
The court found that ordinarily, the plaintiff could have been terminated for taking the unauthorized price discount. However, the evidence showed that on that same Valentine’s Day, two male employees received unauthorized price discounts on flower arrangements from the store and received written warnings. Although one of the two men was a supervisor, all three employees reported to the same store manager and were subject to the same company policy regarding price discounts. Evidence also showed that when deciding how to discipline the men, the company had considered their shift length and intent, in addition to their breach of the policy, but had only considered the policy when terminating the plaintiff.
This case shows that before an employer disciplines or terminates an employee for violation of company policy or rules, it should make sure that all such discipline is applied consistently to all employees.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Stalder v. Fred Meyer Stores Inc., 2007 WL 1099020 (D. Idaho, March 30, 2007)].
The prison guard who alerted supervisor to a possible security breach did not have First Amendment protection for her statements, because they were made as part of her official duties.
For public employees, the First Amendment’s guarantee of free speech does not protect their statements as fully as it does for workers in the private sector.
Recently, a federal court in Chicago held that a prison guard could not claim that her employer violated her First Amendment rights when it transferred her after she reported a possible security breach to her supervisor. The court relied on a recent decision by the Supreme Court, which held that public employees’ speech is not entitled to First Amendment protection if they are speaking on matters related to or in the course of their employment. In this case, the plaintiff was a prison guard responsible for searching all vehicles going in and out of the prison. When a car carrying two prison officials entered the grounds, she was instructed by her immediate supervisor not to search it. When she later complained to the area superintendent about the order, he told her she should have searched the car. The plaintiff was later transferred to a less-desirable job, and she sued the prison and several officials, alleging that she had been transferred in retaliation for complaining about the search procedures.
The court found that the guard was speaking pursuant to her official duties when she reported the possible security breach, and thus the First Amendment did not apply. Specifically, it noted that she made the report while on duty and in uniform, and that the subject matter related to her guard duties and her responsibility to maintain security at the prison.
This case highlights one of the differences between the rights of private employees and the rights of those who work for federal, state or local governments or agencies. Public employees have limits on their constitutional rights, and both employers and employees need to be aware of these limitations when making employment decisions.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Spiegla v. Hull, -- F.3d --, 2007 WL 937081 (7th Cir., March 30, 2007)].
Company not required to accommodate newly hired employee’s religious beliefs when doing so would violate collective bargaining agreement.
Title VII’s prohibition against religious discrimination does not require a company to accommodate the needs of a single employee when doing so would infringe upon the rights of other employees and also violate a collective bargaining agreement.
When plaintiff Daniel Stolley applied to be an assembly worker at an aeronautics company, he indicated on his application that he was available for shift work, weekend work and rotating work schedules. However, after he was assigned a shift that included Friday evenings, he informed his employer that his religion forbid working from sundown Friday until sundown Saturday.
The company refused to transfer Stolley to another shift or department, because the collective bargaining agreement governing all the assembly workers provided that shift transfers were to be made based on seniority. The union refused to make an exception for Stolley, so he was fired after he left work early on successive Fridays. The court cited to Supreme Court precedent and explained that Stolley did not have the right to an accommodation for his religion, because "Title VII does not require employers to make religious accommodations that infringe on the rights of fellow employees."
This case shows that there is a difference between religious accommodation, which is what the plaintiff sought, and religious discrimination. The company did not discriminate against Stolley by refusing to transfer him; it merely held him to the same contractual standards for shift swapping as it applied to all other employees. Such an action is not unlawful.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Stolley v. Lockheed Martin Aeronautics Co., 2007 WL 1010418 (5th Cir., March 28, 2007) unpublished].
