UniQue Personnel Consultants, Inc.

• Decision Date: 26 August 2016
• Docket Number: 25-CA-132398
• Parties: UniQue Personnel Consultants, Inc. and Ana Orozco
• Court: National Labor Relations Board

364 NLRB No. 112

UniQue Personnel Consultants, Inc. and Ana Orozco

No. 25-CA-132398

United States of America, National Labor Relations Board

August 26, 2016

Members Miscimarra and Hirozawa

DECISION AND ORDER

Mark Gaston Pearce, Chairman

On May 28, 2015, Administrative Law Judge Christine E. Dibble issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs^[1] and has decided to affirm the judge's rulings, findings, ^[2] and conclusions and to adopt the recommended Order as modified and set forth in full below.^[3]

The judge found, among other things, that the Respondent violated Section 8(a)(1) of the Act by discharging employee Ana Orozco for engaging in protected concerted activity. The judge found that Orozco was discharged after seeking advice from a fellow employee about how to respond to the discipline she received for violating the Respondent's dress code, which Orozco believed was being applied unfairly and inconsistently. The judge found that this activity was protected and that Orozco was discharged for it. As explained below, we agree with the judge.^[4]

Facts

The Respondent operates a staffing company with several branches in Illinois. The Respondent maintains a detailed dress code for its employees. The dress code prohibits certain types of clothing and the display of body piercing and tattoos while at work.

In August 2012, Orozco began working for the Respondent as a temporary administrative assistant at its Galesburg, Illinois office. In December, 2012, she became a permanent employee. Although she was initially told that her facial piercings were not problematic, in January or February 2013, Supervisor Danielle Mason instructed Orozco to remove her piercings while she was at work, and on several occasions thereafter Managing Consultant Melissa McFadden told her to remove her piercings. In addition, Orozco was verbally counseled about wearing jeans in the workplace.

On March 14, 2013, Orozco arrived at the office wearing a jogging suit, having just undergone a medical procedure. Although she intended to change into appropriate attire upon her arrival, her tasks required immediate attention and she did not have an opportunity to change into work attire. McFadden told her that wearing the jogging suit violated the dress code policy, and instructed her to go home. She received a written discipline for this dress code violation on March 18, 2013.

Around April 2014, ^[5] Orozco began to believe that her supervisors, McFadden and Rehmke, were being overly critical of her. Orozco and fellow employee Anna Castro discussed Orozco's displeasure with the Respondent's dress code policy and the written warning she had received in March 2013. Orozco told Castro that she believed she was being unfairly singled out for violating the dress code.

On May 29, the Respondent emailed its employees about a golfing event it was sponsoring on June 2. The email set forth a dress requirement for the event that, in relevant part, required female employees to wear collared shirts provided by the Respondent and pants or non-denim shorts that were not “too short.” Orozco attended the golfing event wearing the Respondent's collared shirt and capri pants. Orozco observed that two other female employees wore capri pants, and that Rehmke wore khaki shorts. The following day, Rehmke issued Orozco a written final warning for violating the dress code policy. The warning stated: “Professional dress is required both in the office and in public when representing UniQue.” Orozco noted on her written warning that she disagreed with the warning because she believed there was not “anything wrong” with the pants she wore, as they were not denim.

On June 3, Orozco complained to Castro and another coworker, Emily Collins, about the discipline she received. On June 11, Orozco again spoke about the matter with a third employee, Jasper Smith, as they walked to the parking lot at the end of the day. Orozco asked Smith if she could get his advice about a confidential matter. Smith said yes, and Orozco told Smith about her written warning for a dress code violation and explained why she believed it was unfair. Orozco told Smith that she was contemplating bringing the matter to the attention of higher management at an upcoming company picnic. Smith responded that Orozco should not worry about it and let the matter go. Orozco responded, “okay, ” and the conversation ended.^[6]

About a week later, Smith informed the Respondent's human resources department of his conversation with Orozco, and complained that Orozco had been disrupting his work. On June 26, Human Resources Manager Chantelle Gregg contacted McFadden about Smith's conversation with Orozco. McFadden and Rehmke then decided to discharge Orozco.

On June 27, McFadden and Rehmke met Orozco as she entered the office and directed her to a conference room at the rear of the office. After locking the front door of the office to ensure privacy, Rehmke handed Orozco a letter informing her that she was being discharged and explaining the reasons.^[7] McFadden then asked Orozco about her June 11 conversation with Smith. Orozco initially asked her what she was talking about. After McFadden repeated the question a few times, Orozco admitted to speaking with Smith about the written warning and about the idea of complaining to higher management. McFadden replied that Orozco had placed Smith in a “bad spot.” Both McFadden and Rehmke told Orozco that she should have instead come to them if she had an issue. McFadden then instructed Orozco to collect her personal items and leave the office.

The Judge's Decision

The judge found that the Respondent violated Section 8(a)(1) by discharging Orozco for her protected concerted activity. Applying the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983), the judge found that Orozco engaged in protected concerted activity when she discussed with her coworkers the discipline she received and the unfairness of the dress code policy. Citing Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12, slip op. at 3 (2014), where the Board found that an employee engaged in concerted activity by asking coworkers for signatures on a document to be used in support of her sexual harassment claim, the judge stated that an employee who asks for help from coworkers in addressing an issue with management acts for the purpose of mutual aid and protection, even when the issue appears to most immediately benefit the soliciting employee and therefore does not make explicit the employees' mutuality of interests. The judge found that Orozco engaged in such conduct when she asked Smith for advice about how to deal with the unfairness of the discipline she received for the dress code violations. The judge further found that the Respondent had knowledge of Orozco's activity, and that the Respondent's actions evinced animus toward that activity. Finally, the judge found that the Respondent failed to show that it would have terminated Orozco in the absence of her protected concerted activity, ^[8 and accordingly found that her discharge violated Section 8(a)(1).

On exception, the Respondent maintains that Orozco's conversation with Smith was not protected concerted activity and, therefore, the General Counsel did not sustain his initial burden under Wright Line. Contrary to the Respondent and our dissenting colleague, we agree with the judge.^[9]

Discussion

Employee conduct is protected under Section 7 of the Act if it is concerted and engaged in for the purpose of mutual aid or protection. “[W]hether an employee's activity is ‘concerted' depends on the manner in which the employee's actions may be linked to those of his coworkers.” Fresh & Easy, 361 NLRB No. 12, slip op. at 3 (2014), citing NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984); Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). It is well established that employees need not expressly state their intent to initiate group action and that a concerted objective can be inferred from the circumstances. E.g., Whittaker Corp., 289 NLRB 933, 933-934 (1988), and Root-Carlin, Inc., 92 NLRB 1313, 1314 (1951).

In Fresh & Easy, the Board found that an employee engaged in concerted activity by asking three coworkers to assist her in bringing her sexual harassment claim to management, by signing a document she prepared memorializing the incident. The Board found that under Meyers II and its progeny, the employee engaged in concerted activity by seeking her coworkers' signatures, even though she did not intend to pursue a joint complaint. Fresh & Easy, slip op. at 3-4. The Board further found that the employee's activity was for the purpose of mutual aid or protection, even though the employee alone was the target of the harassment that was the subject of the claim. Among other authorities, the Board cited Judge Learned Hand's decision in NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505- 506 (2d Cir. 1942), where he stated as follows:

When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a “concerted activity” for “mutual aid or protection, ” although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in

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