NLRB Means Business About Zero Tolerance Rules

NLRB Means Business About Zero Tolerance Rules Karen Roach/Shutterstock

When a company promises “zero tolerance” for certain workplace wrongdoing, it had better mean it—particularly when unions are involved. One company, Nichols Aluminum, learned this the hard way recently when the National Labor Relations Board found its firing of an employee over violating a zero tolerance policy for violence and threats to be an unfair labor practice.

The problems Nichols Aluminum has faced at the NLRB started with a hand gesture. The company, which has a combination of union and nonunion employees in its Davenport, Iowa, facility, experienced a union-initiated labor strike from January 20, 2012 to April 6, 2012. After the strike ended, returning union employees were asked to sign a form indicating that they would not strike again over the same dispute that had led to the previous strike. A few weeks later, Bruce Bandy, a worker at Nichols who had participated in the strike through Teamsters Local Union No.371, was let go from his job after he made a “cutthroat” gesture (bringing his hand across his neck) at another employee who honked a forklift horn at him. Nichols Aluminum ascertained that Bandy’s gestures had constituted a threat in violation of the company’s zero tolerance policy.

The NLRB administrative law judge on the Nichols Aluminum case decided that the company had not in fact violated Section 8a of the National Labor Relations Act—the section that prohibits employers from treating workers in unions differently from nonunion workers in employment decisions.

However, on August 18 a panel of board members voted 2-1 to overturn the ALJ’s decision. The reasoning? Bandy had been fired for his threatening gesture, while other employees had not been disciplined or fired for their violent or threatening actions in the workplace—some of which seem extreme. According to the board ruling, one employee threatened to beat up a co-worker and was not disciplined in any way.

Following the Wright Line test, an established standard for the NLRB, the board decided that the differential treatment toward Bandy was motivated by “antiunion animus” harbored by his employer. They saw the poststrike notice that Nichols Aluminum’s unionized employees had to sign as “compelling evidence of animus” against employees who had been part of the strike, and noted that Bandy was let go not long after the strike had ended.

The problem of a lack of uniformity in a company’s policy enforcement in the context of unions—or in the context of other laws like antidiscrimination statues, for that matter—is far from new. “This has come up in numerous contexts in front of numerous boards,” Marshall Babson, who is counsel in Seyfarth Shaw’s labor and employment department and a former member of the NLRB, told

What hasn’t always been the case, according to Babson, is that during the past few years the board has been digging deeper on employee handbook and rules issues—a point made clear in the Nichols Aluminum case. “It does highlight the attention that the NLRB has been paying to these matters,” Babson said. By publicizing these handbook cases, he added, the board sets a tone for the regional offices, which will then focus more on similar issues. Prospective petitioners with gripes about their employer’s rules also will take notice, creating a kind of ripple effect.

To prevent having to go before the labor board over an issue like this, employers need to be proactive about making sure all policies are consistently enforced—a need that Scott Faust, a partner in Proskauer Rose’s labor and employment law department and a member of the firm’s labor-management relations group, told only becomes more pronounced when the employer purports to have a zero tolerance policy for certain behaviors.

Faust emphasized the importance of training in policy enforcement down to the supervisor level—as supervisors might operate with varying levels of adherence to the rules without another function, like human resources or legal, to help guide them. “If you’re going to depart from what may seem like consistent application, be able to articulate very clearly why it is that the particular case is different,” Faust said.

Faust pointed out that in the Nichols case, the company could not explain why it had disciplined some employees, like Bandy, and not others—which likely helped sink their case before the NLRB. Unexplained differential treatment also will rile up employees, making them feel mistreated and leaving a vacuum for union organizers to step right into. “If employees see one case gets handled one way and another gets handled another way—that’s not good for morale,” Faust said.

Practice Area(s):