King Soopers, Inc. and Wendy Geaslin, 27-CA-129598

• Court: National Labor Relations Board
• Writing for the Court: Mark Gaston Pearce, Chairman
• Parties: King Soopers, Inc. v. Wendy Geaslin.
• Docket Number: 27-CA-129598
• Decision Date: 24 August 2016

King Soopers, Inc. and Wendy Geaslin.

No. 27-CA-129598

United States of America, National Labor Relations Board

August 24, 2016

Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran

DECISION AND ORDER

Mark Gaston Pearce, Chairman

The primary issue in this case is whether the Board should modify the current make-whole remedy to require respondents to fully compensate discriminatees for search-for-work expenses and expenses incurred in connection with interim employment. The General Counsel urges the Board to discontinue its traditional practice of treating discriminatees' reasonable search-for-work and interim employment expenses as an offset that reduces the amount of interim earnings deducted from gross backpay, arguing that this approach unfairly forces dis-criminatees to bear work-related expenses that result directly from a respondent's unlawful action. The General Counsel instead proposes that these expenses be calculated and paid separately from backpay, regardless of whether the discriminatee received interim earnings.

Before considering the General Counsel's remedial request, we must first decide the merits of the case. For the reasons stated by the judge, ^[1] we find that the Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating employee Wendy Geaslin about her protected, concerted activity.^[2] Additionally, as discussed below, we affirm the judge's conclusions that the Respondent violated Section 8(a)(3) and (1) by twice suspending and discharging Geaslin for engaging in protected, concerted activity. Although our dissenting colleague would find that Geaslin's first suspension was lawful, the dissent ultimately agrees with all of our other unfair labor practice findings.

I. GEASLIN'S SUSPENSIONS AND DISCHARGE

Facts

Geaslin worked as a barista at the Starbucks kiosk in the Respondent's Denver, Colorado grocery store. She was covered by the meat contract between the Respondent and the Union pursuant to the parties' Letter of Agreement #26, Coffee Shops. The parties have additional contracts, such as the retail contract which covers, among others, clerks whose duties involve "bagging . . . sold merchandise." Article 1 of the meat contract and Article 2 of the retail contract describe the work to be performed by employees covered by each agreement.

On May 9, 2014, store manager Theresa Pelo called for employees, and specifically baristas, to assist with bagging in the front of the store. Geaslin was surprised because she had never been asked to bag groceries. Geaslin walked to the front of the store and attempted to tell Pelo that she needed to take her lunchbreak since she would be leaving at 2 p.m.^[3] Pelo stated that Geaslin needed to do as directed and not worry about her lunch. Geaslin asked whether she should be performing these duties because she belonged to a different bargaining unit or union. Pelo repeated her directive. Geaslin turned to bag, ^[4] raising her hands in the air and stating that she was just asking about her lunch. Geaslin then walked toward the check stands to bag groceries but Pelo called her back, saying they needed to talk. Pelo accused Geaslin of refusing to bag groceries. Geaslin replied that she did not refuse, and had only inquired about her lunch break and whether the Union's contract permitted her to perform bagging work. Pelo disagreed and placed her on a 5-day suspension.

On May 14, 2014, Geaslin, Union representative Danny Craine, Pelo, and two other managers met to discuss Geaslin's suspension. The meeting grew tense as the parties disputed whether Geaslin refused to bag groceries or whether she simply questioned the propriety of the task. Ultimately, Pelo placed Geaslin on a second 5-day suspension. During the meeting, Pelo admitted that Geaslin's duties do not include bagging groceries. Subsequently, on May 21, 2014, Pelo terminated Geaslin for alleged gross misconduct during the May 14, 2014 meeting.

Craine testified that he interprets both the meat and retail contracts to prevent employees from performing work outside of their assigned department. Assistant deli manager Angelica Eastburn testified that it was unusual for employees other than produce, bakery, and grocery employees - who are all in the retail unit - to bag groceries.

Discussion

Pursuant to the Board's Interboro doctrine, an individual employee's assertion of a right grounded in a collective-bargaining agreement constitutes protected, concerted activity. 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). As the Supreme Court explained in NLRB v. City Disposal Systems, Inc., "an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated." 465 U.S. 822, 840 (1984).

We agree with the judge that Geaslin engaged in protected, concerted activity when she questioned whether she should be bagging groceries because the work belonged to a different bargaining unit or union. In particular, we agree that Geaslin's interpretation of the contract was honest and reasonable; indeed, it was consistent with her union representative's interpretation of the agreements, the assistant deli manager's testimony that it was unusual for employees outside the retail unit to bag groceries, and Pelo's own admission that Geaslin's duties did not include bagging groceries.

The Respondent and our dissenting colleague contend that the Respondent's suspension of Geaslin on May 9, 2014 was lawful because she did not engage in protected, concerted activity.^[5] Our colleague argues that when questioning the directive to bag groceries, Geaslin was not invoking "a right grounded in the 'meat' agreement."

He contends that "the type of mistake that is permitted under the Interboro doctrine is a reasonable mistake about the facts . . ., and the Interboro doctrine does not protect an employee who invokes a non-existent right." In support, he cites City Disposal. However, the Supreme Court neither adopted nor suggested such a limited interpretation of the Interboro doctrine. In fact, the Court noted that the employee's conduct is concerted so long as "the complaint does, in fact, refer to a reasonably perceived violation of the collective bargaining agreement." Id. at 839-840.

Further, the Board and the courts have interpreted the Interboro doctrine to cover mistakes about contractual rights. For example, in Tillford Contractors, the Board found that an employee engaged in protected, concerted activity when he argued that the presence of another employee on the jobsite violated the contract, even though his contractual claim was incorrect. 317 NLRB 68, 69 and fn. 5 (1995).^[6] In NLRB v. H.C. Smith Construction Co., the Ninth Circuit agreed with the Board's finding that an employee engaged in protected, concerted activity under the Interboro doctrine even though he was incorrect in believing that the contract contained a provision regarding the chain of command on the job. 439 F.2d 1064 (9th Cir. 1971). The court explained that an "employee does not lose the protection of the Act as a matter of law simply because his understanding of the contract turns out to be mistaken." Id. The Seventh Circuit has likewise agreed that "[t]hough incorrect . . . an employee's understanding of the collective bargaining agreement may nevertheless be reasonable." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 515 (7th Cir. 1991) (finding that the employee's refusal of an assignment based on his honest and reasonable understanding of an oral agreement, rather than a contract, was protected, concerted activity).

The dissent's narrow interpretation of the Interboro doctrine is contrary to precedent and the Supreme Court's observation that "[i]n the context of a workplace dispute, . . . the participants are likely to be unsophisticated in collective-bargaining matters." City Disposal, 465 U.S. at 840. Were the Interboro doctrine limited to mistakes about facts, as urged by our colleague, employees would need to be virtual legal experts regarding their contractual rights in order to enforce those rights in the workplace. Holding employees to such a high standard is unreasonable and would certainly chill employees' exercise of their Section 7 rights. Indeed, the Seventh Circuit has recognized that "the exercise of rights protected under the Act would be severely hampered if employees could face retaliation for good faith interpretations of collective bargaining agreements." NLRB v. P*I*E Nationwide, 923 F.2d at 515.

Contrary to the dissent, we find that Geaslin's question whether she should perform bagging work was sufficiently grounded in the contract to be covered by the Interboro doctrine. Article 1 of the meat contract covering Geaslin and article 2 of the retail contract describe the work to be performed by the employees covered by each contract. Article 2 of the retail contract specifically states that "[a]ll work and services performed in the bargaining unit connected with the handling or selling of merchandise to the public shall be performed exclusively by bargaining unit members except as provided below."^[7]Based on these contract provisions alone, Geaslin could honestly and reasonably believe that she should not bag groceries. Moreover, we find that article 7, Section 26, on which the dissent relies, reasonably tends to support Geaslin's understanding of the contract. Article 7 lists the meat unit classifications and their respective duties and restrictions. Section 26, the last provision of the article, states, "It is understood that employees may perform incidental work in another classification without violating this agreement." Section 26 could reasonably be interpreted to permit incidental work among the enumerated meat classifications rather than the exchange of incidental work between the meat unit and...