Temp Agency Employee’s Chat About Discipline Was Protected

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By Michael Rose

Sept. 2 — An Illinois staffing agency violated federal labor law by terminating an employee who discussed the company’s disciplinary procedures with a co-worker, the NLRB found ( UniQue Personnel Consultants Inc. , 2016 BL 286379, 364 N.L.R.B. No. 112, 8/26/16 [released 9/1/16]).

The National Labor Relations Board ordered UniQue Personnel Consultants Inc. to offer reinstatement to Ana Orozco, who was fired after discussing with a fellow employee the discipline she had received for allegedly breaking the company’s dress code.

This is a good example of a case in which the board found that an employer violated an employee’s rights under the National Labor Relations Act even when no union is present in the workplace.

In addition, the decision shows the board considers most conversations among co-workers about working conditions to be protected activity, even when the discussion centers around the circumstances of one particular employee and not a group.

The decision was written by NLRB Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa. Member Philip A. Miscimarra dissented. The board’s decision affirms an opinion issued by an NLRB administrative law judge in June 2015.

Orozco’s discussions with her co-workers were focused on the discipline she received for violating UniQue’s dress code, which she believed was “disparately applied” to her, the board said. It found those discussions constituted concerted activity among the workers.

“Orozco was seeking a coworker’s advice on the best way to address her workplace complaint that the Respondent was discriminatorily and arbitrarily applying its dress code policy—a policy applicable to Orozco’s coworkers,” the board said.

Board Orders Retraction of Police Letter

In his dissent, Miscimarra said that “even if one assumes that the record supports a finding that Orozco’s activity was concerted, unlike my colleagues and the [ALJ], I believe the record fails to establish that Orozco had the requisite purpose of mutual aid or protection.”

The board ordered UniQue to cease and desist from “threatening its employees with prosecution or legal action for talking to other employees, customers, or the general public regarding their terms and conditions of employment.” It also ordered UniQue to offer Orozco reinstatement with back pay.

At the time of Orozco’s termination, UniQue managers presented her with a letter instructing her to no longer contact the staff there, and that it would contact the Galesburg, Ill., police if she did so.

The company also sent a copy to the local police department, but the board ordered the company to issue a written retraction of the letter to the police.

An attorney representing UniQue Personnel Consultants, which has several offices throughout Illinois, didn’t respond to Bloomberg BNA’s request for comment Sept. 2.

To contact the reporter on this story: Michael Rose in Washington at mrose@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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