One of the most interesting things about labor relations is the unusual situations human resources professionals have to deal with on a day to day basis. If you are at a cocktail party with a human resources professional, ask them what the most unusual thing they’ve ever encountered on the job and chances are you’ll hear something truly unique and interesting. The inherently human element makes for good story telling because you really can’t make some of this stuff up. The NLRB recently was confronted with a situation where an HR Generalist, — a person hired specifically to review and help keep an employer in compliance with labor and employment laws,– took the knowledge he gained to immediately threaten the employer with, among other things, bringing in a union if the perceived problems were not corrected.
In Matrix Equities, Inc., 365 NLRB No. 69 (May 15, 2017) the employer had a vacancy in its human resources department and in an employment advertisement, placed by the Office Manager, sought “an ambitious HR professional to assist in the overall operations of the HR department . . .who is willing to go above and beyond in the best interests of the company.” Among the skills required for the job was familiarity with “employment laws and human resources topics, recruiting, interviewing applicants and payroll entry.” The employer was growing and wanted to hire someone who was knowledgeable enough to make sure it was in compliance with workplace laws.
Enter HR candidate Charging Party whose resume stated he “was well versed in analyzing and executing recruitment strategies and human resources functions and had a ‘compliance mindset.'” During Charging Party’s interview the Office Manager informed him that part of his job was to review employer’s workplace practices “for the purpose of achieving compliance with the law.” Charging Party assured the employer that he had conducted internal audits and possessed the requisite knowledge. Charging Party was hired and was given access to the employer’s payroll systems and background services; Charging Party also received keys to the employer’s filing cabinets containing all personnel files.
Employer’s Office Manager told Charging Party that she would like the process of background checks reviewed for “red flags.” Charging Party immediately raised a red flag, his own: that he had previously pled guilty to larceny. Although Charging Party had revealed this information on his application, Office Manager was not aware of it, and testified that had she known, she would not have hired Charging Party.
Charging Party then reviewed personnel files and payroll information. Charging Party drafted a lengthy letter to Office Manager in which he stated he “had major concerns about the workplace.” Charging Party asserted one of the employees was a racist. He also took issue with another employee’s playing a radio station with “uncensored music.” Charging Party noted that the employer’s paid time off policy was “sub-par” because employees were making less than the average demographic salary. Charging Party complained that he and other employees were mis-classified as exempt under the Fair Labor Standards Act. As a solution, Charging Party stated that he “ha[s] and will continue to give serious thought in regards to contacting the NLRB and attempting to organize and eventually form a union (sic).”
Charging Party’s letter continued: he addressed his prior criminal conviction and alleged that one of the employer’s managers was “age- and sex- biased.” Charging Party concluded his letter by noting the workplace issues were “very serious” and had “deeply affected” him. Finally, Charging Party asserted he would “not tolerate them anymore.” It was undisputed that Charging Party had not discussed any of the concerns raised in the letter with other employees.
After reading the letter, Office Manager told Charging Party he was not a team player and fired him. Charging Party filed charges with the NLRB, which issued complaint.
General Counsel’s Theory and the Judge’s Decision
The General Counsel asserted that Charging Party’s termination was a preemptive strike under Parexel International, LLC, 356 NLRB 516 (2011) to prevent Charging Party from engaging in statutorily protected conduct. Under Parexel, the General Counsel has the burden of proving the adverse action was motivated by an intent to suppress protected activity. The Board’s holding is designed to prevent against employers building “a dam at the source of supply” of potential protected activity, by acting against an individual the employer believes may start engaging in protected activity.
The Administrative Law Judge rejected this theory, noting that Charging Party never discussed any of the concerns raised in his letter with other employees. The ALJ concluded that Charging Party “was interested only in protecting his own job by threatening to initiate a variety of legal actions and that he had no interest in promoting, supporting, or assisting other employees in seeking to address any of those issues.” The ALJ recommended dismissal of the claim.
The General Counsel appealed.
NLRB Concludes Charging Party’s Actions Were Personal And Not Protected
A unanimous Board upheld the ALJ and found no violation of the law. The Board noted that Charging Party was hired because of his compliance experience and “he and [the employer] shared an expectation that he would bring to [Office Manager’s] attention instances of potential non-compliance” so that the two could work together to find a solution to the problems.
The Board noted that Office Manager’s initial reaction to the letter was positive “because [Charging Party] had found areas in need of improvement–because he was hired to do just that.” Office Manager’s pleasure soured as she continued to read the letter realizing that “[Charging Party] was not raising the issues to her so that they could work together” but that she was “taken aback” by what she felt was Charging Party’s betrayal of the company and her by “pursuing a course of action plainly inconsistent with the basic purpose for which [the employer] had hired him.”
The Board found it significant that there was no evidence that Office Manager harbored any animus toward protected activity or that the discharge was to prevent Charging Party from occurring in the future. The Board noted Office Manager did not try to find out if Charging Party had talked to other employees nor did she accuse him of “stirring up” activity. Thus, there was no evidence to support the theory that the discharge was preemptive.
The Board saw no protected activity at all. Instead, the Board noted that, after being employed for about two weeks “and without having spoken to any of his coworkers about the issues raised in his letter,” Charging Party presented a letter that contained a range of information, the “vast majority of which did not touch on Section 7 activity. Instead, the letter addressed Charging Party’s “individual impressions and complaints” as well as his obvious concern that he might be fired for his prior criminal conviction.
The Board noted that Charging Party’s letter offered no solutions to the problems he raised and “was drafted in a manner plainly inconsistent with the purposes and duties for which” he was hired.
The scenario presented in this case is a potential nightmare for employers. A person who is hired to assist with compliance, and who has access to all personnel information, threatens to take action. It seems clear that the manner in which the Charging Party was hired, and ultimately fired, give good insight into navigating a potentially risky situation. There was evidence that the Charging Party was hired in large part to help address any potential compliance issues, — and although Charging Party seemed to spot issues well, by not offering any solutions he just didn’t do his job. By threatening to take all sorts of actions Charging Party clearly was acting disloyally. As to the manner in which Charging Party was fired,– for the contents of his letter and nothing else,– meant that the only evidence of protected activity was the mention of the word “union” in the letter. Charging Party did not talk to other employees and the employer did not inquire into whether he did. As we recently saw, an employee’s mere invocation of the word “union” does not cloak the activity with the Act’s protection. The employer also did not couch the termination in terms that might give rise to a claim under the Act. Rather, the employer merely ended the employment of someone who was not doing the job they were hired to do.
You can’t make this stuff up.