Earlier this month, Missourians reminded us that there were a lot of pro-union Trump voters.   Some of these voters just care more about other issues, but others probably don’t realize how much Trump is trying to strip away the few rights workers have under our labor laws.  The most important appointment a President makes at the National Labor Relations Board (NLRB) is the General Counsel, who acts as the chief prosecutor at the agency, and who has unreviewable discretion to decide which cases to take forward.  When a worker is fired for union organizing, the only recourse is to file a charge with the NLRB, and if the NLRB dismisses the charge, the worker is out of luck – there is no right to sue, and no right to appeal.  Donald Trump appointed Peter Robb, a management lawyer, as the NLRB General Counsel, and a recent case involving the Kumho Tire company, illustrates how Robb is using his power to make it harder for workers to organize.

When a worker files a charge at the NLRB, the charge is assigned to one of the 25 regional offices around the country.  Traditionally, the Regional Director for the office, a career civil servant, decides whether the case has sufficient merit to issue a complaint.  But, the General Counsel can order the Regional Directors to seek his advice regarding novel or controversial issues.  Robb has issued a memo  requiring the Regional Directors to seek his advice  on cases involving the application of workplace rules to workers engaging in concerted activity, and the Kumho Tire case shows how Robb is using his power to dismiss cases without even giving workers the opportunity to confront their employer at a hearing.

According to a memo issued by Robb’s office, here are the facts in the Kumho Tire case:  The workers began an organizing campaign in August 2017.  Shortly after the organizing campaign began, the company created a website to share anti-union information with workers.  The company also used the website to respond to allegations and rumors circulating in the plant.  Kumho asserted on this website that the rumor that “the Company paid supervisors and team leads a bonus of $2,000 to fight the union” was “absolutely false.”  Shortly after that posting, an employee went to access a form that was located two feet from a team leader’s desk.  The employee noticed that there was a bonus request form face-up on the desk signed by the Team Leader seeking $350 for “non-union support.”  The employee took the form, made a photocopy, and returned it.  That employee then showed the form to a second employee, who took a photograph of the form and posted it to a closed, private Facebook group for union supporters.

A company supervisor told the employee who posted the picture of the form that he was being fired because the Facebook post violated the employer’s social media policy.  The social media policy prohibited posting of “internal reports, policies, procedures, or other internal business-related confidential communications.”

Robb conceded that the worker was engaged in protected concerted activity when he posted the bonus request form.  He also conceded that the social media rule that the employer used to justify the termination arguably did not apply to the worker’s conduct.  Nevertheless, Robb ordered the Regional Director to dismiss the charge based on his finding that the conduct lost the protection of the Act because the fired employee knew that his fellow employee had “misappropriated the form.”

In reaching this conclusion, Robb cited to two cases where the Board found no violation of the NLRA.  In one, a short-term employee was fired when she was caught looking through a manager’s personnel file after being specifically cautioned against doing that, and in the other case, a worker was fired for removing bills of lading from the employer’s files, copying them, and giving them to a union.  But, in other cases the Board has rejected a defense based on a violation of confidentiality rules.  For instance, in a 1986 case called A.L.S.A.C., the Board held that a list of wage increases for employees marked “confidential” was not private where the employer had carelessly left it lying on a copy machine.  The same principle should apply here where the document in question was left in plain sight in an area open to employees.  Furthermore, the employer arguably forfeited any claim it had to confidentiality when it made the apparently false assertion that team leaders did not receive bonuses for fighting the union.

The outcome in this case would be disturbing enough if had followed an adversarial hearing.  The issue in a case like this should be the employer’s motivation for the termination.  If the employer fired the worker because it was upset that he had called out the employer’s apparent lie, then the firing is illegal.  On the other hand, if the employer was neutrally applying a rule preserving confidentiality of internal communications, then the firing would be lawful.  Had the case gone to hearing, a judge would have had the opportunity to consider (1) the extent of the employer’s animosity toward the unionization effort, (2) any evidence that the substance of the Facebook message played some role in the decision to terminate the employee; (3) the number of people who had access to the area around the Team Leader’s desk; (4) whether the decision to terminate the worker was consistent with the employer’s past practice; (5) whether the employer had a uniform practice of terminating employees for confidentiality breaches or whether it had sometimes imposed lesser punishments; and (6) whether bonuses related to anti-union campaigning had lost their claim to confidentiality in light of the employer’s own website discussing them.

In 1982, the NLRB decided that it was not going to set aside elections on the grounds that the employer or the union had lied about any relevant facts.  Instead, the Board decided that workers are “mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it.”  But, if an employer is free to lie to workers in an effort to convince them to abandon their support for unionization, the NLRA ought to protect a worker who shows his co-workers the most persuasive evidence that the employer has lied to them.  It’s a sad state of affairs when the NLRB’s chief prosecutor sides with a lying employer over a whistleblowing worker.