June 22, 2017

Company Held Accountable for Supervisor’s Text Message Questioning Union Activity

BY: Thomas Lenz, L. Brent Garrett

On June 7, the National Labor Relations Board (“NLRB” or “Board”) ruled that a company committed an unfair labor practice by unlawfully interrogating and discharging an employee. Specifically, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, 356 NLRB No. 88, 2017 WL 2497155, the NLRB found National Labor Relations Act (“Act”) violations when a supervisor sent an employee a text message inquiring about the employee’s union activity, and then told him there was no work for him.

Background of Case

In July 2015, Claudio Anderson asked his employer, RHCG Safety Corp., AKA Redhook, for time off to visit his mother in Panama. Anderson’s supervisor, David Scherrer, granted the request. Soon after, Anderson signed a union authorization card. Anderson’s mother told him he did not need to come to Panama after all.

On July 30, 2015, Anderson texted Scherrer, asking if he could work the next two days. Sherrer texted back: “What’s going on with u? U working for Redhook or u working in the union.” Anderson did not reply. Several hours later, Scherrer texted, “U got to tell me what’s going on.” Anderson sent two more texts asking for work. Scherrer responded, “No right now! I filled your spot come meet me tomorrow Not right now”

A few days later, Anderson visited one of Redhook’s jobsites. Scherrer told him there was no work for him. He advised him to speak with Nick Rodriquez, an employee who the company often used to convey messages to Spanish-speaking employees. Anderson did so. When he asked why he couldn’t work, Rodriguez told him that Mr. Garofalo, a Vice-President of Operations, said that Anderson could not work for the company anymore. Anderson took this to mean he was fired.

Anderson’s union filed an unfair labor practice charge against Redhook. An NLRB Regional Director issued a complaint in the case.

After a hearing, an administrative law judge (“ALJ”) found that Anderson was illegally interrogated and discharged in violation of Section 8(a)(1) and (3) of the Act. This section bars employers from interfering in employees’ right to join and be represented by unions.

Redhook appealed to the NLRB.

The Board’s Reasoning

The NLRB agreed with the ALJ that Scherrer’s text message about whether Anderson was working for Redhook or the union was an unlawful interrogation. The Board reasoned: “Scherrer sent the text in direct response to Anderson’s inquiry about whether he could return to work. By juxtaposing working for Redhook with working in the Union, Scherrer’s text strongly suggested that the two were incompatible.” The Board noted that Sherrer neither had nor communicated any legitimate purpose for asking Anderson about the union. Furthermore, Scherrer did not provide Anderson with any assurances against reprisals.

The NLRB rejected Redhook’s contention that a text message cannot be found to constitute an unlawful interrogation. It stated, “an unlawful interrogation need not be face-to-face.” The Board found no reason to allow coercive employer interrogations simply because they were delivered via text message.

The NLRB also determined Anderson could reasonably conclude that Redhook had discharged him, even though he had not been explicitly told as such. The Board noted that Anderson’s efforts to return to work had been repeatedly rebuffed by Scherrer. Moreover, a Spanish translator told Anderson that a Vice-President of Operations had said he could not work for Redhook anymore.

The NLRB’s Chairman, Phillip Miscimarra, wrote separately to indicate that while he agreed Anderson had been unlawfully interrogated, his interpretation was that Anderson had voluntarily quit his job and Redhook had no work for him at that time.

Significance to Employers

Employers should be vigilant about all of their communications with employees. They should emphasize to their managers and anyone else with supervisory power that protections under the Act apply to a much wider range of communications than those sent from the workplace using company computers. All types of communications are covered: formal and informal; those from devices that are employer-owned of employee-owned; communications sent during work hours and after work; from the office or elsewhere; and conversations conducted face-to-face, emails, phone calls, and texts.

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Author(s)

Thomas Lenz

Thomas Lenz

Partner

(626) 583-8600

tlenz@aalrr.com

Thomas Lenz is a partner handling all aspects of labor and employment law issues from the firm’s Pasadena and Cerritos offices. He heads the firm’s traditional labor and National Labor Relations Board practices. He works with employers in all major industries across California and the West. Mr. Lenz currently serves on the Executive Committee of the Labor and Employment Section for the State Bar of California. He also serves as a Lecturer in Law, teaching at the USC Gould School of Law.

full bio

L. Brent Garrett

L. Brent Garrett

Partner

(562) 653-3200

bgarrett@aalrr.com

Brent Garrett is a partner in the firm's Cerritos and Irvine offices and is a member of the firm’s Private Labor and Employment Group. He exclusively represents management in labor and employment matters. He is also a frequent contributor to the Firm’s Labor Relations Blog, providing analysis and commentary about new developments in the area of traditional labor law.

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