NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Ashley Furniture
Industries, Inc. and Voces de la
Frontera. Case 18–CA–18737
December 31, 2008
DECISION AND ORDER
By
Chairman Schaumber and Member Liebman
On
September 17, 2008, Administrative Law Judge James M. Kennedy issued the
attached decision, which he subsequently corrected in an October 6 Errata. The Respondent filed exceptions and a
supporting brief, and the General Counsel and the Charging Party filed answering
briefs.
The
National Labor Relations Board[1]
has considered the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, findings,[2]
and conclusions and to adopt the recommended Order as modified.[3]
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge as modified below and orders that the Respondent, Ashley Furniture
Industries, Inc.,
Substitute
the following for paragraph 2(a).
“(a)
Within 14 days after service by the Region, post at its plant in Arcadia,
Wisconsin, copies of the attached notice marked ‘Appendix.’7 Copies of the notice, on forms provided by
the Regional Director for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted, in English, Spanish, and any other
foreign language the Regional Director deems appropriate, by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent
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 Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since July 3, 2007.”
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National Labor Relations Board
Joseph Bornong, for the General Counsel.
Thomas R. Trachsel (Felhaber, Larson, Fenlon & Vogt), of
John M.
Loomis and Mark A. Sweet, of
DECISION*
Statement of the Case
James M. Kennedy, Administrative Law Judge. This case was tried in
Issues
The principal
issue(s) is/are whether Respondent was privileged to tell its employees that
they were not to discuss certain matters with fellow employees, including their
immediate supervisors, instead limiting their communications to a single member
of its human resources department, although an ad hoc exception may have been
made for the affected employee’s spouse.
The issues which were not to be discussed were: (1) a warning for an
assembly error; (2) Respondent’s receipt of “no-match” letters from the Social
Security Administration as it named between 40 and 50 employees; and (3)
telling an employee not to discuss the expiration of his work permit.
i. jurisdiction
Respondent
admits it is a corporation operating in
ii. the unfair labor practice evidence
A. Background
In addition to
the
The facts are in
large part undisputed. During the spring
of 2007 Respondent’s human resources department had become aware that the Federal
Department of Homeland Security had determined to modify the rules concerning
an employer’s duty to enforce the provisions of the Immigration Reform and Control
Act of 1986 (IRCA). Although I will
discuss below in passing what the DHS was attempting to do, it suffices to note
here that Respondent was putting in place a procedure to handle the expected
annual “no-match” letters from the Social Security Administration. For the past few years it had become accustomed
to receiving such letters as its complement of immigrant employees had
expanded. The DHS rules had not previously
imposed enforcement duties upon employers concerning the employees’ eligibility
to work in
Two of the
allegations, however, do not deal with issues raised by the no-match
letters. The first deals with a
statement made to an alien employee named Demetrio Martinez after he had
received some internal discipline. The
other deals with another statement made to
B. Statements to
On September 24,
Neubauer did
testify concerning the “no-match” letters but gave no testimony about her
meeting with
In both cases a
management official told
C. The Threats Prohibiting Revelation of
the
“No-Match” Letters
The evidence
concerning Respondent’s statements to employees concerning their receipt of “no-match”
letters comes not only from the General Counsel’s employee witness, Veronica
Jimenez, it also comes from Respondent’s witnesses Amy Neubauer and her
superior, Executive Vice President James Dotta.
Indeed, it is in large part supported by a neutral third party, a
community translator named Joyce Stellick.
Dotta explained
that the Company was concerned about the impact any public revelation the “no-match”
letters might have. He cited three
things which concerned the corporation.
They were: confidentiality concerning the social security numbers
themselves; the allegedly real possibility that employees receiving “no-match”
letters would be subject to harassment or retaliation; and the Company did not
want misinformation or false rumors which might scare its Hispanic work
complement into leaving the area.
As a result, he
consulted with legal counsel about the best way to approach the upcoming DHS
rules. After consultation, he settled on
a three-stage procedure. In the first,
the Company would give the employee 30 days to contact the Social Security
Administration to rectify whatever problem social security had identified. This instruction was to be delivered to the
employee by a letter read to him or her by an HR officer. If, at the end of the first 30 days the
matter had not been cleared up, a second 30-day letter was to be issued. If that did not resolve the issue, then the
employee would be given an additional 3 days as a firm deadline. If the deadline was not met, the employee was
to be fired. Pattern letters were
prepared to that effect and readied for the expected arrival of the “no-match”
notifications.
Dotta believed
that in order to obtain the confidentiality result he sought, he needed to
limit the number of HR officials handling the expected letters. In fact, Respondent at
[Witness Dotta] I told her it was very, very important, the
confidentiality was of utmost concern to me, and that therefore she was supposed
to talk to me if she had any issues with the process.
. . . .
A. And that
she should give instruction when she talked to the employees that they’re to
contact the Social Security Administration, that’s the people that could help
them, and if they had any further concerns, they should contact her.
Whatever Dotta
may have instructed Neubauer to do, Veronica Jimenez’ testimony describes what
actually happened. She is a production
employee who builds headboards. In late
July, she was one of 40 or 50 employees who had become the subject of “no-match”
letters. Neubauer summoned her to the office
and advised her that her name and social security number did not match. Using an interpreter from one of the
As the first 30-day
period began to end, the second round began.
According to a company position statement,3
about thirty employees’ situations remained unresolved. Jimenez testified that Neubauer, through a
translator, told her that if she didn’t get this issue settled within another
30 days, she would be terminated.
Indeed, the second letter, read by the translator, explicitly says in
reference to the final 3-day period, that if at the end of the 3-day final deadline
Respondent “cannot verify your work authorization and identity, your employment
with Ashley will be immediately terminated.”
Jimenez further testified, “I was told again that this meeting was
confidential, that I could not talk about it, neither with my supervisor nor my
coworkers.” She also said that she was
never given the letter; that it was never in her hands, only read to her.
Shortly
thereafter, she had a third meeting with Neubauer and another translator. At this meeting the translator told her she
could continue working, but gave no explanation for the change of heart. The translator told her she could forget
about what had been said in the previous meetings.
Neubauer did
give testimony regarding the procedure she followed in delivering the letters,
but gave virtually no evidence concerning what she told Jimenez. She did deny telling Jimenez that she could
not speak to her spouse about what was happening.
Finally, on
September 28, a community translator named Joyce Stellick (under contract with
the county) was approached by one of Respondent’s male employees who spoke only
Spanish. He had lost the business card
of the person to whom he was supposed to report his work eligibility status and
his social security information. He
asked Stellick if she could contact Respondent on his behalf and find out who
the individual was that he should be getting in touch with. Unable to find the HR number in the phone
directory (only the retail store’s number was in the book), Stellick went to
the public library where the librarian had the number to hand and dialed it for
her.
A woman named
Amy (presumably Neubauer) answered and the two had a conversation. Stellick:
I proceeded to explain to her that a
gentleman had come to my office, supposedly had a card with a name and a phone
number, he had lost it, and I was just trying to assist him to get that
information for him. And at that point
in time she said, “Who are you again?” which I repeated again I was an interpreter. And she asked me, “With whom?” I told her what I did. So it went back and forth, that conversation.
Q. Okay. Keep going.
Was there more of the conversation?
A. Yes, there
was. She also asked me how come this
gentleman had come to me, and I said, “Well, because I am an interpreter,” of
course, and all he wanted to know was who to contact at Ashley and I was trying
to assist him. She told me that it was her understanding that the employees at Ashley
were not supposed to go outside the Company to talk to anyone. And at that point in time I repeated my
question and I said, “Well, is he supposed to come to see you or someone
else?” And she said, “Me.” And I asked her again for her name. As she gave it to me, I wrote it down on a
piece of paper in front of me. [Bolding
added.]
Stellick gave
the information to the gentleman and he, presumably, found it useful.
Under the
circumstances, I find that it was Respondent’s policy to insist that the
employees who had received a “no-match” letter say nothing about it to anyone
other than a single HR representative—specifically Neubauer. Neubauer says that she did tell employees who
objected that they could speak about it with their spouse or an attorney. Assuming that is so, it is clear that they
were not to speak of the matter to coworkers, supervisors, managers, or to any
outsiders. As evidenced by her discussion
with Stellick, Neubauer well understood that requirement. She was carrying out Dotta’s instructions to
the letter.
iii. legal analysis
Any analysis, of
course, starts with Section 7 of the Act.
That section states in pertinent part: “Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain from any
or all such activities.” (Emphasis added.) This section, therefore, protects employees
and guarantees their right to engage in concerted activity for their mutual aid
and protection. Concerted activity,
self-evidently, means employees can communicate to one another about common
problems they are having at the workplace and such communications are protected
by Federal law. Furthermore, the Board
and the courts have given it an expansive meaning, reaching beyond workers
simply discussing workplace matters among themselves. It is an unfair labor practice under Section 8(a)(1)
to prohibit employees from engaging in such activity.
Indeed, for it
to be a violation of Section 8(a)(1), an employer’s conduct does not even need
to rise to the level of a specific threat.
The statute states: “It shall be
an unfair labor practice for an employer to—interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7.” Thus, prohibiting employees from speaking to
one another about common concerns in the workplace or speaking to outsiders
about those concerns are both interdicted by the statute. In a union context, an easy example is the
ejection of a union official, who has a contractual right to be there, from an
employer’s premises. The ejection of
their representative has the direct effect of inhibiting employees from speaking
to their union about workplace issues.
See, for example, Frontier Hotel
& Casino, 309 NLRB 761, 766 (1992), enfd. 71 F.3d 1434 (9th Cir.
1995). But it is congruently true in a
nonunion context, as well. The seminal
case, of course, is NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962), where the Court found protected the
walkout of employees who concertedly left work to protest extremely cold conditions.
Then, in the
context of finding activity “concerted” within the meaning of Section 7, the
Court in Eastex, Inc v. NLRB, 437
U.S. 556 (1978), held that employees had the protection of Section 7 when they
sought to distribute literature in nonworking areas during nonworktime which,
among other things, urged a State legislature to oppose “right to work”
language in a constitutional revision.
Here, the employees were making an appeal to the drafters of a modified
constitution, people clearly outside the workplace, but who had the power to
affect conditions of labor as a whole.
And, of course,
the steps preliminary to actual concerted activity are also protected. See Whittaker
Corp., 289 NLRB 933 (1988). After
all, if an employer acted swiftly enough to prevent the initial steps leading
to concerted activity which would become clearly protected by Section 7, it
could obviously prevent that activity entirely and never have to deal with its
employees over such issues. That result
is clearly contrary to the Congressional intent found in Section 7’s
wording. Moreover, when an employer
lumps employees together and treats them as a group the employer is treating
them collectively.
Clearly, insofar
as a gag rule prohibiting the discussion of wages is concerned, it has long
been held that such rules impinge upon Section 7 rights and are unlawful. E.g., NLRB
v. Main Street Terrace Care Center, 218 F.3d 531, 537 (6th Cir. 2000),
enfg. 327 NLRB 522 (1999); Waco, Inc.,
273 NLRB 746, 748 (1984) (rule explicitly prohibiting employees from discussing
wages among themselves is a clear restraint of Sec. 7 rights and violates
§8(a)(1)); also Jeannette Corp., 217
NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976).
The General
Counsel has presented here three different gag rule or confidentiality scenarios. I shall take them in the same order as
discussed in the previous section.
First is the
direction to
The General
Counsel correctly cites Verizon Wireless,
349 NLRB 640, 658–659 (2007), for the proposition that prohibiting employee
discussion of workplace concerns, particularly if they relate to discipline or
potential discipline, violates Section 7.
One caveat to this rule is that an employer may be insulated from
liability under the Act if it can demonstrate a legitimate and substantial
interest in the confidentiality outweighs the rights of employees under Section
7. See generally NLRB v. Great Dane Trailers, 388 U.S. 26 (1967); NLRB v. Fleetwood Trailer Co., 389 U.S.
375 (1967); Caesar’s Palace, 336 NLRB
271, 272 fn. 6 (2001); Jeannette Corp., supra; Waco, Inc., supra.
In this case,
however, Respondent offers no defense whatsoever.
Similarly, when
Amy Neubauer told him he could not discuss with anyone the fact that his work
permit had expired, Respondent also violated Section 8(a)(1). Neubauer was certainly within her rights to
ask
As I noted
before, it is the instruction alone which tends to interfere with or restrain
an employee from engaging in concerted activity and is sufficient to support
such a violation. It need not rise to a
specific threat since interference and restraint is all the statute
requires. Even so, a threat is usually
implied if such instructions are given.
The more interesting
legal question is the injunction given by Neubauer pursuant to Dotta’s plan, to
each of the employees who had received a “no-match” letter. Jimenez’ testimony, together with the
admissions made by Neubauer and Dotta (and supported by Stellick) clearly falls
into the same general category as the other two. The principal distinction is that the instruction
was given concerning something the Social Security Administration had triggered—to
correct some irregularity perceived by that agency, rather than coming from
employee ranks. Nonetheless, rather
clearly, Respondent had determined to treat as a group all of those whose names
were provided by the Social Security Administration. This was the “lumping” which the Board perceived
in Enterprise Products, supra. And, the observation I made concerning
In some respects
this interdiction was worse than that imposed by the employer in Eastex.
There, the employees sought favorable treatment from the State
legislature. Here, the employees only
would have sought the assistance of fellow employees, spouses, or a community
group, although legal assistance might have been sought as well. I think it is fair to say that absent some
legitimate defense, Respondent committed an 8(a)(1) violation closely tracking
those already found.
Respondent
asserts that it had a substantial business justification for its
instruction. As noted above, there were
three components of that purported justification: (1) Maintaining the privacy and security of
the employees’ social security numbers in order to prevent identity theft; (2)
The possibility that employees who were the subject of “no-match” letters would
be subject to harassment and/or retaliation by community members who harbored
xenophobic tendencies; and (3) To prevent false information and misinformation
which might have the effect of scaring away the Hispanic employees it had
recruited.
These reasons
were all given by vice president for human relations Dotta. To prove that there were harsh anti-immigrant
feelings in the community, Respondent offered in evidence a number of newspaper
articles (including some online reprints) published in the newspapers of nearby
cities.
I have no doubt
that the appearance of these articles was in Dotta’s mind as he cast about for
a way to efficiently address what seemed to be coming from the Department of
Homeland Security.
Both the
Charging Party and Respondent have, in their briefs, supplied an informative
discussion about the impact of DHS’ proposed rule in 2007. Prior to 2007, employers, while subject to
both administrative and criminal sanctions for knowingly employing undocumented
workers, were not considered to be part of the enforcement procedures set forth
in IRCA. In general, an employer’s
obligation to comply with that statute simply required them to have an employee
fill out an I-9 form, reviewing certain listed documents which established both
the employee’s identity and his/her right to work in
On August 31,
the ACLU Immigrant’s Rights Project obtained a nationwide temporary restraining
order against DHS prohibiting enforcement of that new rule from the United
States District Court for the Northern District of California. That temporary restraining order was converted
to a preliminary injunction on October 10.
The August 31 TRO was the reason that Respondent ceased its efforts to
require the employees to clear up whatever issues they had with the Social
Security Administration and for that reason employees such as Jimenez were relieved
of any further obligation, at least until the court made its final ruling.
I have reviewed
the newspaper accounts and while I agree that there had been some level of
public discussion in 2006 about the arrival of immigrants in the Arcadia-Whitehall
area (some had been hired by a large chicken processor also located in
Dotta also
mentioned, in support of his third reason, that the Company wished to reduce
negative rumors about its employment of immigrants, two different incidents which
seem to have occurred. The first
involved a rumor that Immigration and Customs Enforcement (ICE), the
investigative branch of DHS that enforces the Immigration and Nationality Act,
had made some sort of appearance in nearby Winona, Minnesota (25 miles southwest)
and was poised to make a raid on employers in Arcadia. The second was a rumor that Respondent was
not deducting payroll taxes from its employees’ pay, allegedly because it
thought it could get away with not paying taxes because its employees were
illegal aliens. Respondent took immediate
steps to counter both of these issues, but nevertheless remained on the lookout
for additional incidents. Essentially,
Dotta feared that information concerning the “no-match” letters would lead to
more of the same.
While I think
there is some validity to Respondent’s anxiety, I think the concerns about
privacy and the protection of social security numbers is overblown. Respondent is not the guardian of such
matters, except to the extent they are maintained in its own files. In a real sense this is nothing more than
unnecessary paternalism. The employees
are well aware of the need to keep these numbers confidential. Silencing them for that purpose is a clear
overreach. Moreover, such an instruction
would not resolve the problem of identity theft which is more likely to come
from repositories of such numbers, not from individuals. I do not find this reason, even if taken in
good faith, to warrant the deprivation of rights guaranteed to employees by Section
7.
The next reason,
the possibility that the employees would be subject to xenophobic misbehavior
by the general public, might actually be valid had there been any violent
incident to deal with. Nothing of that
kind had occurred in 2006 and the entire matter had begun to cool by the summer
of 2007. In this sense I think
Respondent’s speculation about what might happen was premature. It had successfully defended two other
rumors, one of which actually focused on the question of special treatment of
illegal aliens, the false claim by uninformed people in the community that
Respondent was not withholding payroll taxes on the aliens working for it.
Respondent is
the principal employer in the community and must be considered a large employer
wherever it might be located. It is, no
doubt, subject to the same scrutiny that other large employers routinely
face. Large companies with big payrolls
are unlikely to be routinely cheating the tax authorities, particularly in the
numbers employed here, around 5400 in this area of
Likewise, the
rumor about an immigration raid by ICE turned out to be unfounded. In fact, this kind of rumor occurs in all
areas of the country where there are large numbers of immigrant employees. West central
Therefore, I do
not find Respondent’s second and third justifications for imposing the
confidentiality requirement on the issue of an employee’s name appearing in a
Social Security Administration “no-match” letter to have persuasive
weight. They simply do not rise to a
level where they can be regarded as legitimate and substantial reasons for
depriving employees of their statutory rights under the National Labor
Relations Act. The connections are
simply too tenuous. Respondent’s legitimate
and substantial business justification defense fails as inadequately supported.
Accordingly, I
conclude that in each of the instances alleged by the General Counsel,
Respondent interfered with and restrained its employees in the exercise of
their Section 7 rights and therefore violated Section 8(a)(1) as alleged.
The Remedy
Having found
Respondent to have engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Additionally, it shall be directed to post a notice to employees
advising them of their rights and describing the steps it will take to remedy
the unfair labor practices which have been found.
Based upon the
foregoing findings of fact, legal analysis, and the record as a whole, I make
the following.
Conclusions of Law
1. Respondent is
an employer engaged in commerce and in an industry affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. On July 3,
and various dates in July and August 2007, Respondent violated Section 8(a)(1)
of the Act when it prohibited its employees from speaking to any other person
about matters affecting their employment, including disciplinary proceedings,
instructions concerning Social Security no-match letters and connected
employment eligibility issues, and the updating of work permits.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended6
ORDER
The Respondent,
Ashley Furniture Industries, Inc.,
1. Cease and
desist from
(a) Prohibiting
its employees from speaking to any other person about matters affecting their
employment, including disciplinary proceedings, instructions concerning Social
Security no-match letters and connected employment eligibility issues, and the
updating of work permits.
(b) 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.
(a) Within 14
days after service by the Region, post at its plant in
(b) 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 Respondent has taken to comply.
Dated,
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An
Agency of the
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 prohibit you from speaking to any other person about
matters affecting your employment, including disciplinary proceedings, instructions
concerning Social Security Administration no-match letters and related
employment eligibility issues, or the updating of work permits.
We will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the above rights guaranteed you by Federal law.
Ashley Furniture
Industries, Inc.