A U.S. Court of Appeals for the District of Columbia has refused to enforce a National Labor Relations Board (Board) finding of unfair labor practices calling out the Board’s rational as “nonsense.”

In the case Stern Produce Company Inc., v. NLRB the Court found the employer’s actions had not created the impression of surveilling union organizing activity nor risen to the level of retaliation against an employee for participating in unionization efforts.

The actions at issue were: 1) a text message sent by a supervisor to one of the company’s truck drivers letting him know that covering up the truck’s inward facing camera – even during a lunch break – was against company policy; and 2) the company’s issuance of a written warning (as opposed to a verbal warning) to another driver for the first-time offense of using “disparaging or abusive words, phrases, slurs, and negative stereotyping” in violation of company policy.

Initially deemed by an Administrative Law Judge (ALJ) as evidence insufficient to create an impression of surveillance and actions not motivated by union animus, the original ALJ decision was reversed by the Board.

On appeal to the D.C. Circuit, the decision was again reversed, with the Court calling out the Board’s explanation for its reversal concerning the text message as “nonsense…unsound… and misguided.”  The Court also found the Board’s reasoning concerning the company’s anti-union animus insufficient to support the allegation of retaliation. Specifically, “an employer’s simple animus” and “general hostility” toward the union are insufficient on their own to support a claim of anti-union animus; there must be something more to connect the employer’s animus to the adverse action.

What Does It All Mean?

Consistency in enforcement and discipline will be key components of an employer’s risk mitigation plan as it is likely we’ll see further expansive rulings by the Board.

Next Steps

A key takeaway from Stern is the emphasis the Court places on the employer’s consistent enforcement of its own policies and its reasonable justification for deviating from its progressive disciplinary policy. A few key points:

• Make decisions according to company rules, policies, and procedures to assure consistency and avoid potential claims of discrimination.
• Strive to be professional and maintain a professional working environment. Don’t allow personal feelings to influence the treatment of employees.
• Observe the following by basing all decisions and actions as to all employees on:
  • Company policy and procedure.
  • Work performance, including quantity of work, quality of work and conduct at work.
  • Past practices in the same circumstance.

• Don’t allow degradation of the work environment through lack of enforcement when it comes to overtly rude or unprofessional behaviors.