A recent ruling by the National Labor Relations Board gives employers a little more guidance about when it is okay to fire workers for displaying negative attitudes without violating their rights to organize.
But employment law experts caution that when it comes to protecting workers’ rights to organize and an employer’s right to discharge what disgraced former Vice President Spiro T. Agnew would call nattering nabobs of negativism, the federal regulator will continue to look at the specific facts in each case.
“An employer will be in a more defensible position if the rule specifically links the employee’s negative attitude or conduct to actual interference with the employer’s business operations,” said attorney David Weldon, with the Chicago firm of Franczek Radelet.
The ruling concerned a non-union Boiling Springs, S.C., restaurant that fired two workers while a union organizing drive was underway. At issue was whether the employee handbook rule that the business used to justify the firings violated the workers’ right to form, join or assist a labor union or to seek collective bargaining.
The Copper River Grill’s rule prohibited employees from displaying a negative attitude “that is disruptive to other staff or has a negative impact on guests.” One of the fired employees, a leader of the union organizing drive, used an offensive term when discussing her employer in front of customers.
After she was discharged in 2012, the former worker filed an unfair labor practice charge against Copper River, accusing the restaurant of firing her because of her union activity. The administrative law judge who heard the case disagreed, saying her outburst was not protected by law, given the circumstances.
“This fit of pique wasn’t part of the service that guests would reasonably expect,” Judge Keltner W. Locke wrote in his decision.
The three-member NLRB panel that decided the case agreed.
If the same things were said in private or on a picket line, the fired worker may have been given more protection, said Richard Vitarelli, an attorney in the Hartford, Conn., office of McCarter & English.
“Employers really need to examine an employee’s conduct in the context in which it takes place,” Vitarelli said.
Attorney William Bevan, in the Pittsburgh office of Reed Smith, said the restaurant prevailed because its rule addressed its workers in the context of performing their duties or interacting with other employees or customers.
“You have to make it very clear you’re talking about the individual conduct of the individual worker to their work assignment or another employee,” he said.
Bevan said the ruling is consistent with NLRB rulings in similar cases. But some attorneys noted that two of the three NLRB members who decided the case were Republican appointees, while Chairman Mark Gaston Pearce, an Obama appointee, dissented. They said the case could have gone the other way if Democrat appointees made up a majority.
“Copper River was a favorable outcome for the employer on this issue, but by and large the decisions we’re seeing from this NLRB are primarily pro-employee,” Weldon said.