Alternative Entertainment, Inc.

National Labor Relations Board - Administrative Judge OpinionsJul 9, 2015

07-CA-144404 (N.L.R.B. Jul. 9, 2015)

JD–39–15 Byron Center, MI UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES ALTERNATIVE ENTERTAINMENT, INC. and Case 07–CA–144404 JAMES DECOMMER, an Individual Colleen J. Carol, Esq., for the General Counsel. Timothy J. Ryan, Esq. (Jackson & Lewis) of, Grand Rapids, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Grand Rapids, Michigan, on May 19, 2015. James DeCommer, the charging party, filed the charge and amended charge on January 13 and March 2, 2015, respectively.1 The General Counsel issued the complaint on March 26, 2015. The complaint alleges that Alternative Entertainment, Inc. (the Company) violated Section 8(a)(1) of the National Labor Relations Act (the Act)2 by: (1) prohibiting employees, including DeCommer, from discussing with coworkers his concerns over the Company’s changes to its compensation policies; (2) discharging DeCommer because he defied company managers and continued speaking with coworkers about those changes; (3) implementing rules prohibiting unauthorized disclosure of employee compensation and salary information; and (4) compelling employees, as a condition of employment, to sign arbitration agreements waving their rights to initiate or maintain group, class, or collective actions in judicial forums. The Company denies the allegations, attributing DeCommer’s discharge to his refusal to satisfactorily perform his job and rejects the claim that DeCommer engaged in concerted activity. The Company maintains that its rules pertaining to confidentiality are lawful because they only prohibit “unauthorized disclosure” and are not unlawful on their face. With respect to its mandatory arbitration rule, the Company asserts that, although the Board is likely to view the collective action waiver as unlawful, such a position has not been supported by any decision from the Courts of Appeals. 1 All dates are 2014 unless otherwise indicated. 2 29 U.S.C. §§ 151–169. JD–39–15 2 On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following 5 FINDINGS OF FACT I. JURISDICTION The Company, a corporation with an office and place of business in Byron Center, 10 Michigan (Byron Center facility), has been engaged in the retail sale and installation of satellite television service and related products. In conducting its operations at the Byron Center facility, the Company annually derives gross revenues in excess of $500,000, and purchases and receives goods valued in excess of $5000 directly from points outside the State of Michigan. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of 15 Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Company Operations20 The Company provides satellite television installation and service as DISH Network contractor in Michigan and Wisconsin. Tom Burgess is the Company’s president. Neal Maccoux serves as its chief financial officer. Rob Robinson is director of field operations; Vic Humphrey is the general manager of the Company’s Byron Center office where DeCommer worked. 25 Approximately 77 field technicians report to and receive assignments from the Byron Center office. Most field technicians assigned out of that office drive company-owned vehicles to cover their assignments (COV technicians). Approximately eight of those field technicians drive their own vehicles to cover assigned routes (POV technicians). Prior to 2015, POV 30 technicians were compensated an additional $0.82 per unit for personal vehicle costs. Field technicians are paid on a unit-based compensation system, with portions of their pay and pension accruals based on metrics derived from the number of service calls (units) performed. Metrics are based on a rolling 3-month average of units completed out of the total 35 number of assigned units, and the amount and type of work completed and services provided, including customer satisfaction ratings. In the case of an experienced POV technician like DeCommer, a typical service call accrued 12 units at a rate ranging from $1.90 to $4 per unit. All field technicians are also expected to promote additional services and products that 40 augment a customer’s entertainment system. In recent years, “Smart Home Services” (SHS) were added to the metrics as the basis upon which bonuses were paid. SHS include extra services such as mounting television sets on walls, installing stereo systems and selling wireless headphones. As of August 2014, the Company expected field technicians to average $6 to $8 in extra sales for each regular installation or service visit to meet the metrics. That metric increased to $10 per 45 JD–39–15 3 visit by November of 2014.3 These averages are used to calculate employees’ commissions every other week. The SHS metrics are calculated on a weekly basis and sent to managers. The Company routinely sends emails to field technicians with low SHS sales during the quarter advising that their SHS sales and/or metrics overall are currently on pace to fall below the Company-set goals. In certain cases, company supervisors will “coach” or "ride along" with an 5 employee that has performance issues.4 B. The Company’s Rules The Company’s operating rules at issue are reflected in its employee handbook, the most 10 recent version of which was distributed to all employees in November 2014.5 The work rules set forth at pages 27-28 list 22 examples of prohibited behavior. The specific behavior at issue prohibits the “[u]nauthorized disclosure of business secrets or confidential business or customer information, including any compensation or employee salary information.” 15 The Company’s conflict resolution or complaint policy is set forth at page six of the handbook. The policy lays out an internal procedure for the informal and formal resolution of employment-related issues. After exhausting all internal channels, employees are directed to the final avenue available: 20 4. If you are dissatisfied with the response to step three and you wish to appeal, such appeal must be made in writing and an arbitration process will take place. Please follow the arbitration process outlined in the Arbitration Agreement. The most recent version of the mandatory arbitration agreement was distributed to 25 employees on April 18, 2013. DeCommer was required to sign and did sign the agreement setting forth the Company’s “Open Door Policy and Arbitration Program.”6 The document states, in pertinent part: Specifically, by agreeing to this policy, you agree that in consideration for your 30 employment and in exchange for promises made by [the Company], both you and [the Company] understand and agree either one may elect to resolve the following types of disputes exclusively through binding arbitration. The types of disputes covered by the Company’s binding arbitration provision include35 claims against the Company or any other employee relating to discrimination, compensation, promotion, demotion, and disciplinary action. The provision further states: By signing this agreement, among the other provisions in this document, you and [the Company] agree that if either party to a dispute cho[o]ses to arbitrate a claim involving 40 the types of disputes described above, then the other party may not file or maintain a 3 The findings with respect to the Company’s compensation practices and expectations derive mainly from DeCommer’s credible and undisputed testimony. (Tr. 17-20.) 4 Although the Company maintains that coaching does not constitute discipline, each coaching encounter is documented. (Tr. 71.) 5 GC Exh. 2. 6 GC Exh. 3. JD–39–15 4 lawsuit in a court. The only claims not subject to this agreement are those which the law declares “nonarbitrable” or not subject to arbitration. Claims with administrative agencies, such as workers’ compensation claims would not be subject to this agreement. C. DeCommer’s Performance5 James DeCommer was employed as a field technician at the Byron Center from August 2006 until his discharge in December 2014. While employed by the Company, DeCommer was one of its most productive employees and seldom received coaching or warnings regarding the attainment of his quarterly goals. DeCommer did receive an email in mid-September 2014 from 10 Toby Kendall, his manager at the time, informing him that his SHS sales were not on par to meet the $10-per-work order goal by the end of the month. Several other field technicians also received similar emails around that time. DeCommer was able, however, to accelerate his production for the remainder of that month and ended up exceeding his quarterly goal. 15 The next month was a different story. In October 2014, DeCommer broke the national record for SHS sales, earning over $80-per-work order that month.7 After his record-setting month, DeCommer’s average SHS sales per work order went down in November, but he still exceeded his goals.8 In a conversation with Humphrey that month, DeCommer explained that he actually lost money by achieving the record because the time spent on additional SHS sales 20 reduced the total number of assignments he could complete. D. DeCommer’s Complaints Regarding Compensation In November, rumors circulated among the POV field technicians that their transportation 25 supplement would be changing from the unit-based rate of 82 cents to a mileage-based rate of 52 cents. After confirming the changes with Humphrey and Robinson, DeCommer discussed them with approximately 10 other technicians over the next several weeks. Thereafter, DeCommer frequently shared with Humphreys and Robinson the concerns of POV field technicians that the new transportation compensation formula would decrease their compensation.9 He also 30 documented his concerns in a text message to Robinson on December 5: So I just calculated the difference in pay since my last oil change October 9th. At .82 unit I made 3269.34 not counting overtime and that would have placed an additional 327.00 into my 401K. If my POV pay is based on mileage I would have only been compensated 35 1682.75 assuming about a .53 reimbursement. [That’s] a 1600 dollar drop in pay in just under 2 months . . . times that by 6 and [that’s] a 9500 dollar reimbursement cut not counting any additional overtime or lost 401K [contribution] . . . so very conservatively [I’m] looking [at least] a 10,000 pay cut next year . . . . [that’s ] an impossible pill to swallow.40 7 Although not documented, DeCommer’s assertion that he broke the national record was not disputed. (Tr. 39.) 8 GC Exh. 9. 9 Humphrey, Robinson and the Company’s position statement confirmed DeCommer’s credible testimony regarding his discussions with other POV technicians about the transportation supplement rate change. (Tr. 21–23, 115–116, 120; GC Exh. 6 at 2.) JD–39–15 5 [That’s] also looking at [a lot] of those weeks at a 5 day not a 6 day period. So on 6 days [I lose] even more.10 Later that day, DeCommer followed up by telephone with Robinson. DeCommer reiterated his concerns over a potential 20-percent cut in pay if the proposed POV 5 reimbursements were implemented. Robinson agreed to consider DeCommer’s concerns. In a conference call with company managers on December 2, Maccoux confirmed the move to a change in the transportation reimbursement of POV technicians from a unit-based formula to a mileage-based formula. On December 3, he followed up with an email to general 10 managers highlighting the plan for review and comment. On December 10, Maccoux sent an email containing October data, and illustrating the differences between the two formulas, and asking general managers to solicit feedback from their POVs about the change.11 In accordance with Maccoux’s directive, Humphrey spoke with DeCommer and another 15 POV about the changes on December 10. Robinson confirmed to DeCommer that the new system would be implemented and it would be based on the mileage driven by each POV from their first job to their last job. DeConmer disagreed once again, stressing the significant loss in income that POV technicians would experience. Robinson responded that POV technicians unhappy with the change had the choice of driving a company vehicle. Thereafter, DeCommer 20 continued to discuss the issue with coworkers and advocate against the changes with Robinson and Humphrey.12 On December 12, DeCommer approached Robinson again. This time, however, Robinson said “let’s talk outside.” Once outside the presence of other employees, Robinson told 25 DeCommer to discuss this subject only with him or Humphrey, but not with other technicians. After DeCommer reiterated his opposition to the changes, Robinson stated that he would arrange a telephone conference with Maccoux.13 Undeterred by Robinson’s admonition, DeCommer continued discussing his 30 compensation concerns on a daily basis with Humphrey and with other POV technicians, including Josh Graff, Greg Brewer, Keth Pulling, Bob Myers, and Steve Childs. DeCommer’s efforts were unsuccessful and the Company informed all of the technicians on December 15 that the compensation system for POVs would be changed to a mileage-based 35 system.14 The next day, Humphrey took DeCommer into a closed room for the promised 10 GC Exh. 4. 11 Although not produced, I find that the “document attached,” as referred to in the Company’s position statement, was submitted to the Regional Office’s field examiner. It is unclear why the General Counsel did not include the position statement’s attachments, but Gettelman’s chronology of events is generally corroborated by DeCommer’s testimony. (GC Exh. 6 at 2.) 12 DeCommer’s credible testimony regarding his conversations with coworkers after that conversation is not disputed. In addition, his interaction with management on December 10 was undisputed and corroborated by the Company’s position statement. (Tr. 28-29; GC Exh. 6 at 2.) 13 I credit DeCommer’s credible testimony over Robinson’s denial that the latter prohibited him from further discussing the issue with other POV technicians. (Tr. 27–28, 106.) 14 R. Exh. 8. JD–39–15 6 telephone conference with Maccoux. Maccoux said employees were currently overpaid; DeCommer disagreed, insisting that he would lose between $7000 and $10,000 if the changes went through. He also disagreed with the Company’s calculations and mentioned that he spoke with other field technicians and they confirmed that they would also lose money based on the changes. Maccoux responded that it was not the Company’s intention to cause its employees to 5 lose money. At the conclusion of the discussion, DeCommer agreed to provide Maccoux and Humphrey with all of his trip data and calculations for his October routes.15 After his meeting with Humphrey and Maccoux, DeCommer briefed 5 to 10 POV field technicians about those discussions. He also briefed his colleagues again on December 17.16 He 10 then sent a long email to Burgess, the Company’s president. DeCommer’s email, which Burgess forwarded to Gettleman, the Company’s human resources director, mixed appreciation for the opportunities that the Company had provided him, along with a detailed explanation of how the changes would drive POV technicians either out of the Company or into the COV technician side. In his case, he asserted that the changes would result in a 20 percent, or nearly $7000, 15 decrease in compensation and possibly cause him to sell his home and move to another state. If that occurred, DeCommer requested that Burgess recommend him for employment with the DISH Network contractor in that state.17 Burgess never replied to the email. Instead, the Company proceeded to eliminate him as an employee.18 20 E. DeCommer’s Termination On December 18, DeCommer arrived at work to find no service calls assigned to him. He asked Humphrey about it, but Humphrey explained that some technicians were going to be sent home that day. DeCommer asked for a few jobs because he was about to go on vacation. 25 Humphrey said he would consider possible assignments after the staff meeting. After the meeting, however, Russell called DeCommer into Humphrey’s office for another meeting. At that point, Humphrey informed DeCommer that “our relationship is not working out. You’re terminated.” DeCommer asked if the termination related to his job performance. Humphrey merely reiterated, “It’s not working.”1930 After terminating DeCommer, Humphrey documented the action in a “separation document” stating that DeCommer “[d]id not work to his potential in Smart Home Services consistently.” As for the reason for the action, he simply wrote: “Relationship is not working out.”20 In an email to Robinson later that day, DeCommer asked, “Rob what did [I] do wrong? 35 Why am [I] being fired?”21 The Company did not respond. 15 DeCommer’s testimony regarding this conversation was not disputed by Humphrey and is corroborated by the Company’s position statement. (Tr. 30-34; GC Exh. 6 at 3.) 16 This finding is based on DeCommer’s credible and undisputed testimony. (Tr. 35-36.) 17 GC Exh. 5. 18 The Company’s rush to terminate DeCommer was reflected in an internal email the next day stating that his direct deposit information had already been deleted. (GC Exh. 10 at 1.) 19 DeCommer and Humphrey provided consistent testimony that the latter simply referred to the employment relationship “not working out.” (Tr. 37–38, 98.) 20 GC Exh. 7. 21 GC Exh. 4. JD–39–15 7 F. The Lack Of Comparable Discharges Prior to his record-setting performance in October, DeCommer was subjected to “coaching” conversations on three occasions in 2014: “Adding Time” on April 23; “Replenish Inventory” on June 13; and “Low SHS” on September 18. However, he was not subjected to any 5 coaching conversations in November or December with respect to any facet of his performance.22 Three other employees “separated” from the Company around the same time as DeCommer. One employee, Warren Frazier, resigned for another job. In the other two instances, the employees were terminated. In both cases, the Company documented serious performance 10 deficiencies. Greg Berhns was terminated on January 14, 2015, because he “struggled in many areas,” and reached the breaking point when he “refused to perform [SHS sales] at job sites.” Ryan Meyers was terminated for “performance” on January 24, 2015 because he “continued to fail metrics.”23 Prior to his termination, Meyers was counseled on eight occasions in 2014 for an assortment of deficiencies, including low SHS (twice), quarterly metrics, conduct, and improper 15 uniform. His last counseling was on December 18, the same day that DeCommer was terminated.24 III. LEGAL ANALYSIS 20 A. Prohibiting Disclosure Of Wage Information An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004); Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Where the25 rule is likely to have a chilling effect on Section 7 rights, the maintenance of the rule is an unfair labor practice, even absent evidence of enforcement. In determining whether a challenged rule is unlawful, however, the rule must be given a reasonable reading; particular phrases must not be read in isolation, and improper interference with employee rights must not be presumed. 30 The rules at issue here prohibit an employee from making an unauthorized disclosure of “business secrets or confidential business or customer information, including any compensation or employee salary information,” and “personnel data (includes salary information).”25 Suspension and termination are listed as possible immediate consequences for breaking the unauthorized disclosure rules. 35 The Company’s rule is facially invalid. An employer’s interest in protecting its confidential business and customer information has long been recognized under Board law. However, an employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits employees, without justification, from discussing among themselves their wages and other terms 40 and conditions of employment. See Hyundai America Shipping Agency Inc. 357 NLRB No. 80, 22 Humphrey conceded the lack of any discipline issued to DeCommer in November or December. (Tr. 109.) 23 GC Exh. 13. 24 GC Exh. 11 at 7. 25 GC Exh. 2 at 28. JD–39–15 8 slip op. at 21 (2011) (employer violated Sec. 8(a)(1) by maintaining a provision in its employee handbook stating that "any unauthorized disclosure of information from an employee’s personnel file is a ground for discipline, including discharge").26 Moreover, since the aforesaid rule was invalid on its face, it was not necessary for the 5 General Counsel to demonstrate that it was illegally motivated, discriminatorily enforced, or even enforced at all. Congoleum Industries, 197 NLRB 534, 539 (1972); Lexington Metal Products Co., 166 NLRB 878 (1967); Farah Manufacturing Co., 187 NLRB 601, 602 (1970). Under the circumstances, the Company violated Section 8(a)(1) of the Act by 10 promulgating and maintaining a rule which prohibited employees from discussing their wages and other working conditions among themselves. B. Compulsory Arbitration Agreement 15 The complaint also alleges that the Company violated the Act by maintaining an arbitration agreement as a condition of its employees' employment that precludes them from filing any group, class, collective, or other representative action claims through arbitration or the judicial system. 20 In D. R. Horton, 357 NLRB No. 184, slip op. at 1 (2012), the Board found that an employer violates Section 8(a)(1) of the Act by imposing, as a condition of employment, a mandatory arbitration agreement that precludes employees from “‘filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral or judicial.’”2725 The Company’s “Open Door and Policy and Arbitration Program” lays out an internal procedure for the informal and formal resolution of employment-related issues. DeCommer was required to sign the arbitration agreement on April 18, 2013 or risk not being assigned any service calls, as a condition of his employment. As such, the arbitration agreement was a 30 mandatory rule imposed by the Company as a condition of employment. Therefore, the 26 See also Blue Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976) (employer violated Sec. 8(a)(1) of the Act by promulgating and maintaining a rule forbidding employees from discussing their wages at any time under penalty of dismissal); Jeannette Corp. v. NLR.B, 532 F.2d 916 (3d Cir. 1976), (employer violated Sec. 8(a)(1) by maintaining an unqualified rule prohibiting employees from discussing their wage rates). 27 Although D. R. Horton was overturned by the Fifth Circuit, it remains Board’s precedent and its rationale was most recently affirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). The rationale used in D.R. Horton and confirmed in Murphy Oil consists of three main arguments. First, mandatory arbitration agreements that bar employees from bringing joint, class or collective workplace claims in any forum restrict the exercise of a substantive right to act concertedly for mutual aid and protection under Section 7 of the Act. Second, employer-imposed individual agreements that restrict the Section 7 rights of employees, including agreements requiring them to pursue claims against an employer individually, have been held to violate the Act. Third, a decision finding an arbitration agreement unlawful under the Act, because it precludes employees from bringing joint, class or collective claims in any forum, does not conflict with the Federal Arbitration Act. JD–39–15 9 agreement is evaluated in the same manner as any other workplace rule. See D.R. Horton, supra, at 5. To determine if a rule, including a mandatory arbitration policy, violates Section 8(a)(1) of the Act, the Board applies the test set forth in Lutheran Heritage Village-Livonia, 343 NLRB 5 646 (2004). See U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D. R. Horton, supra, 357 NLRB No. 184. Under Lutheran Heritage, the first inquiry is whether the rule explicitly restricts activities protected by Section 7. If it does, the rule is unlawful. If it does not, “the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule 10 was promulgated in response to [Section 7] activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage, supra at 647. The Company’s mandatory arbitration policy explicitly restricts activities protected by Section 7 by prohibiting employees from bringing class or other collective actions relating to 15 Section 7 type claims: employment-related discrimination, compensation, promotion, demotion and disciplinary action. Accordingly, I conclude the Company’s maintenance of the mandatory arbitration agreement violates Section 8(a)(1) of the Act.20 C. Prohibiting DeCommer From Discussing Wage Complaints “An employer violates Section 8(a)(1) by forbidding employees to discuss wages with other employees.” Highland Superstores 301 NLRB 191 (1991). Such a prohibition is unlawful 25 even if the rule is only expressed orally and not reduced to writing. Jeanette Corp. 217 NLRB 653 (1975), enfd. 532 F.2d 96 (3d Cir. 1976); First Transit, Inc. 360 NLRB No. 72, slip op. at 14 (2014); Double Eagle Hotel & Casino, 341 NLRB 112, 115 fn. 14 (2004). The prohibitive statement does not have to be specific; “[a]ny ambiguity in a particular prohibition that sweeps so broadly as to put in doubt an employees' right to engage in [protected activity] without fear of 30 punishment by his employer is construed against the employer which formulated that prohibition.” Baptist Medical Center, 338 NLRB 346 (2002), citing Grouse Mountain Lodge, 333 NLRB 1322 (2001). DeCommer spoke with Robinson about the compensation changes on December 12, at 35 which point Robinson told him that he should not talk to other technicians about the matter, and should instead direct any concerns to himself or Humphrey. Robinson’s statement to DeCommer explicitly and specifically prohibited discussion amongst employees about compensation. Double Eagle Hotel & Casino, supra, Mediaone of Greater Florida, Inc. 340 NLRB 277 (2003). Robinson admitted that he told DeCommer to speak with managers about the issues he had with 40 the new system, even though DeCommer was already frequently communicating with managers regarding the change POV compensation. This reveals that Robinson’s true intent behind his statement was to compel DeCommer to stop talking about the issue with other employees, not to encourage him to speak with management, something DeCommer was clearly willing to do. DeCommer disregarded the admonition and proceeded to talk to POV technicians and inform 45 them about the content of DeCommer's conversation with Robinson. JD–39–15 10 I find the Company violated Section 8(a)(1) by instructing DeCommer to cease talking to other employees about the proposed change in compensation, effectively promulgating a rule prohibiting employees from discussing the Company’s compensation system. First Transit, Inc. 360 NLRB No. 72 (2014). 5 D. Discharge of DeCommer The General Counsel alleges that the Company violated Section 8(a)(1) on or about December 18 by laying off DeCommer because he engaged in protected concerted activity. The Company denied the allegations and vaguely attributed his discharge to performance related 10 issues. On December 18, DeCommer arrived for work but did not have any assigned jobs. Humphrey called DeCommer into his office and told him that “our relationship isn’t working out.” In the termination documentation, Humphrey vaguely wrote that DeCommer was laid off 15 because he “[d]id not work to his potential in Smart Home Services consistently,” and the relationship between [the Company] and DeCommer “is not working out.” Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel must prove, by a preponderance of the 20 evidence, that an employee engaged in concerted protected activity, the employer had knowledge of the employee’s protected activities, the employer took adverse action against the employee, and the action was motivated by a discriminatory impetus. Proof of discriminatory motivation may be based on either direct or circumstantial evidence, Robert Orr/Sysco Food Services, LLC 343 NLRB 1183 (2004). If the General Counsel establishes a prima facie case by meeting these 25 elements, the burden shifts to the Company to prove, also by a preponderance of the evidence, that it would have taken such action even in the absence of the protected conduct. Simply presenting a legitimate reason for its action is not enough. Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 966 (2004); T.J. Trucking Co., 316 NLRB 771, 771 (1995); GSX Corp. v. NLRB, 918 F.2d 1351 (8th Cir. 1990).30 DeCommer exercised his Section 7 rights by complaining to management about the changes to compensation and discussing those complaints with coworkers. Management knew of his concerted activities because Robinson pulled DeCommer aside and instructed him to stop sharing his wage concerns with coworkers. There is no direct evidence that Humphrey and/or 35 Robinson knew that DeCommer continued discussing POV compensation issues with coworkers after Robinson’s admonition. However, the timing of DeCommer’s discharge shortly after Robinson’s unlawfully coercive admonition provides strong circumstantial evidence of such knowledge, as well as discriminatory motive. See, e.g., Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999); Hall v. NLRB, 941 F.2d 684, 688 (8th Cir. 1991); NLRB v. Rain-40 Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984) (“Timing alone may suggest anti-union animus as a motivating factor in an employer’s action.”). The Company’s vague and transparently pretextaul explanation for discharging DeCommer – that “it wasn’t working out—provides even stronger evidence of discriminatory 45 motivation. See All Pro Vending, 350 NLRB 503, 508 (2007); Rood Trucking Co., 342 NLRB 895, 897 (2004); Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir. JD–39–15 11 1995) (pretextual explanation warrants inference that employer desires to conceal an unlawful motive) (quoting Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966)). Company supervisors did not give DeCommer any indication that they were unsatisfied with his work in November or December, illuminating the fact that their proffered reason for discharge was pretextual and actually attributable to DeCommer’s complaints regarding compensation. 5 Not surprisingly, the Company ignored DeCommer’s inquiry for an explanation as to why he was discharged. It did not have a legitimate explanation since DeCommer’s performance history was devoid of warnings or other discipline, and his previous coaching encounters were in line with Company practices relating to performance goals or behavioral expectations.2810 DeCommer’s vaguely documented discharge, however, stands in stark contrast with those of other technicians “separated” from the Company based on performance around the same time. Even based on DeCommer’s refusal to reach for another national record in SHS sales, the Company’s departure from past disciplinary practice as to how it treated employees with subpar performance in SHS sales is further evidence of pretext supporting an inference of 15 discriminatory motivation. When other employees had noticeable deficiencies in their performance the Company warned them and provided “coaching,” rather than immediate termination. Such lesser discipline was not afforded to DeCommer, who was neither warned nor “coached” in November or December. See, e.g., Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 814 (3d Cir. 1986), cert. denied 481 U.S. 1069 (1987); Birch Run Welding & Fabricating, Inc. v. 20 NLRB, 761 F.2d 1175, 1181 (6th Cir. 1985); JAMCO, 294 NLRB 896, 905 (1989), affd. mem. 927 F.2d 614 (11th Cir.), cert. denied 502 U.S. 814 (1991). Although the Company correctly points out that DeCommer’s performance in November fell well below his record-breaking performance in October, DeCommer still exceeded goals set 25 by the Company. Therefore, the Company’s explanation for termination is untrue, which further supports a finding of pretext. See, e.g., Cincinnati Truck Center, 315 NLRB 554, 556–557 (1994), enfd. sub nom. NLRB v. Transmart, Inc., 117 F.3d 1421 (6th Cir. 1997) (unpublished table decision); Active Transportation, 296 NLRB at 432, fn.7 and 8. 30 Having established a prima facie case that the Company discriminated against DeCommer, the burden shifted to the Company to prove, by a preponderance of the evidence, it would have laid DeCommer off even if he had not complained about the Company’s POV compensation policy. The Company was unable to meet such a burden since its employees’ performance and disciplinary records established that DeCommer’s discharge was clearly 35 inconsistent with its treatment of other employees. Accordingly, the Company violated Section 8(a)(1) of the Act by discharging DeCommer because he complained about changes to employee compensation. CONCLUSIONS OF LAW40 1. By (1) prohibiting James DeCommer from discussing his concerns over changes in compensation with coworkers; (2) implementing rules prohibiting unauthorized disclosure of employee compensation and salary information; and (3) compelling employees, as a condition of employment, to sign arbitration agreements waving their rights to initiate or maintain group, 45 28 GC Exh. 9, 12. JD–39–15 12 class, or collective actions in judicial forums, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging James DeCommer for objecting to changes in the terms and conditions of his employment and discussing his concerns with coworkers, the Company violated Section 5 8(a)(1) of the Act. REMEDY Having found that the Company has engaged in certain unfair labor practices, I shall 10 order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Company, having discriminatorily discharged an employee, must offer him reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be 15 computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Company shall file a report with the Social Security Administration allocating 20 backpay to the appropriate calendar quarters. The Company shall also compensate the discriminatee for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012). 25 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended29 ORDER 30 The Company, Alternative Entertainment, Inc., Byron Center, MI, its officers, agents, successors, and assigns, shall 1. Cease and desist from 35 Discharging or otherwise discriminating against any employee for complaining about the Company’s compensation practices and policies. Preventing employees from discussing among themselves or otherwise disclosing personnel data or compensation-related information.40 Maintaining a mandatory arbitration agreement barring or restricting your right to file charges with the National Labor Relations Board or waiving the right to maintain class or collective actions in any arbitral or judicial forums. 29 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. JD–39–15 13 In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act.5 Rescind its handbook rule prohibiting employees from disclosing personnel data or salary information and furnish employees with a revised handbook indicating that the rule has been rescinded. 10 Rescind its arbitration program in all of its forms and notify employees this has been done. Within 14 days from the date of the Board’s Order, offer James DeCommer full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.15 Make James DeCommer whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision. 20 Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing that this has been done and that the discharge will not be used against him in any way. Preserve and, within 14 days of a request, or such additional time as the Regional 25 Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. 30 Within 14 days after service by the Region, post at its facilities in Grand Rapids, Michigan copies of the attached notice marked “Appendix.”30 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Company’s authorized representative, shall be posted by the Company and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In 35 addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Company customarily communicates with its employees by such means. Reasonable steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Company has 40 gone out of business or closed the facility involved in these proceedings, the Company shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Company at any time since April 18, 2013. 30 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JD–39–15 14 Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Company has taken to comply. 5 Dated, Washington, D.C. July 9, 2015 ______________________________ Michael A. Rosas Administrative Law Judge10 15 20 25 30 35 JD–39–15 APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT do anything to prevent you from exercising the above rights. YOU HAVE THE RIGHT to discuss wages, hours and working conditions with other employees and WE WILL NOT do anything to interfere with your exercise of that right. WE WILL NOT stop you from disclosing personnel data or salary information and WE WILL repeal the rule in our handbook on that subject and furnish you with an insert for the handbook that advises you that the unlawful rules noted below have been rescinded. WE WILL NOT maintain a mandatory arbitration agreement that bars or restricts your right to file charges with the National Labor Relations Board, and WE WILL rescind our arbitration program in all of its forms and WE WILL notify you that this has been done. WE WILL NOT maintain a mandatory arbitration agreement that requires you to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT discipline and/or fire employees because they exercise their right to discuss wages, hours, and working conditions with other employees. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL offer James DeCommer his job back along with his seniority and all other rights or privileges. WE WILL pay James DeCommer for the wages and other benefits he lost because we discharged him with interest .and will reimburse him for all search-for-work and work related expenses JD–39–15 WE WILL remove from all of our files all references to the discharge of James DeCommer and WE WILL notify him in writing that this has been done and that the discharge will not be used against him in any way. ALTERNATIVE ENTERTAINMENT, INC. (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 477 Michigan Avenue, Room 300, Detroit, MI 48226-2543 (313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-144404 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (313) 226-3244.