Employee Bad Attitudes Protected By NLRB

The Seventh Circuit Court of Appeals recently upheld a National Labor Relations Board decision (Staffing Network Holdings, LLC vs. National Labor Relations Board, 15-1354 & 15-1582, 7th Circuit, March 2016) holding an Employer, Staffing Network Holdings, in violation of the National Labor Relations Act by twice threatening Non-Union Employees with discharge for engaging in alleged protected and concerted activity and for actually discharging Employee Griselda Barrera for protected and concerted activity.

In this Case, a Supervisor by the name of Andy Vega told two (2) of the Employees who were working on the Production Line that they had to work faster. One (1) of the Employees (Juan Gutierrez) advised Vega that he would not work faster for his hourly pay of $8.25 an hour and was then told by Vega to go home if he was unable to keep up with the work and because of his attitude. When Gutierrez was sent home by Vega, the other Employees on the line briefly stopped working to confront Vega about his decision. Vega, obviously put in a difficult situation, advised the Employees that they should return to work immediately or he would also send them home. Griselda Barrera refused and asked if she was being threatened and said she could send a letter to the Department of Human Rights about her mistreatment. Vega told another Supervisor to send Barrera home and she refused, insisting that she had done nothing wrong and continued to attempt to get the other Employees worked up because of the injustice. Barrera later left and when she (Barrera) inquired as to her returning the next day, was told she had to talk with Vega about what happened and that she should not return to work.

Barrera filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that she had been unlawfully discharged for exercising her “Section 7 Rights”. Staffing Network, through Vega, argued that Barrera was not sent home because she was complaining about the alleged injustice, but because she had become abusive and insubordinate and had caused him embarrassment in front of the other Employees. These arguments were rejected by both the Administrative Law Judge and the NLRB and were supported by the Seventh Circuit Court of Appeals, which stated as follows:

It is well settled that a brief on-the-job-work-stoppage is a form of economic pressure entitled to protection under the National Labor Relations Act (Molon Motor & Coil Corp. v. N.L.R.B., 965 F.2d 523, 525 (7th Cir. 1992)). Staffing Network terminated Barrera because of her concerted and protected activity in protesting Vega’s treatment of Juan Gutierrez in relation to the terms and conditions of his employment and to that of the other pickers. Therefore, substantial evidence exists to support the NLRB’s finding that the Company violated the Act when it discharged Barrera for engaging in protected and concerted activity.

Obviously, Supervisor Vega was thrust into a situation that escalated very quickly and, in all probability, he may have been totally unprepared to deal with this highly volatile situation. He reacted emotionally rather than taking a step back to consult with other Management Personnel on how best to deal with a difficult situation. It is strongly suggested by the author that while insubordinate conduct and a refusal to work may be grounds for immediate termination, the “facts or circumstances of the situation” must be considered and Supervisors and Management Personnel advised that when confronted by a hostile situation, it might be best to take a step back and consult with other members of Management as how best to proceed. There is no need to “terminate someone on the spot”, it can always be done the next day when cooler heads prevail.

Questions? Contact Walter at (312) 629-9300 or waliszka@wesselssherman.com