I think by now regular readers of this column know I embrace my inner geek. I read decisions when they are issued in areas where I am trying to identify trends, anticipate future events, and give clients and friends some insight they may not get from others. And you know that I have been keeping tabs on the National Labor Relations Board now that it is being led by a unanimous Republican-led, Trump-appointed group of decision-makers.
You might imagine my surprise when I read a recent unanimous decision where the Board reversed the administrative law judge and held that the firing of a union advocate was illegal. The case is called Rhino Northwest, LLC, 369 NLRB No. 25 (Feb. 6, 2020) and it is an interesting read.
Employees at this Company would be assigned jobs based on a referral list. Rhino Northwest had a written policy that if an employee did not accept an available assignment for 90 days, she or he would be “deactivated” from the list and would not be referred jobs in the future. An employee who was “deactivated” could be “reactivated” on request.
Following a union organizing campaign, which the union won, an employee was “deactivated” from the list. The employee happened to be a big union supporter and ran a competing business. During the election campaign, senior management made a good deal about the fact that this union supporter ran a competitive business and questioned whether that competitor had a union contract. (The employee asserted, somewhat proudly I think, that he was a union company.)
Once the election was over, Rhino Northwest deactivated the employee. The HR director said he was deactivated because he had not worked in 90 days. Others testified it was because he ran a competitive business, which was against another written policy.
After a full trial, the administrative law judge found the discharge to be lawful.
The NLRB did not agree. Stressing that the issue was not whether Rhino Northwest could have fired the employee for running a competitive business, but whether the company’s stated reason was the true reason, the Labor Board examined the record and rejected the Company’s defense. A key part of the decision centered on the fact that other managers had known about the employee’s competition for a long time and even referred work to him, without issue. The Board was also troubled by the fact that the reasons for the actions were not consistent. People could not get their story straight.
I do not think this signals a “softer” or more “employee-friendly” NLRB. Perhaps the Board just could not reconcile the facts to the Company’s theory. Or, perhaps, the Board was just showing some Union love around Valentine’s Day.