Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In a recent decision, the Board re-emphasized its commitment to proscribing employers’ efforts to discover the otherwise unknown identities of employees engaged in union activities. In Dilling Mechanical Contractors (357 NLRB No. 56), the Board affirmed an ALJ decision from over 8 years earlier and found that the employer violated Section 8(a)(1) of the NLRA. Specifically, the Board determined that the company’s discovery requests – which were made in the course of court-filed litigation – seeking the names of its employees who had joined the union, were unlawful.
The core facts involved the lead organizer of Local 166 of the Plumbers and Steamfitters Union. The union organizer removed several trash bags from the company’s dumpster in an effort to procure information for the union about how to contact the company’s employees to support its organizing efforts. As a result of this behavior, the employer filed a court action in Indiana state court alleging, among other things, criminal acts of theft, receiving stolen property, and acts of burglary. The trial court granted the company’s motion for summary judgment and ordered a separate damages hearing. As part of this separate damages hearing the employer sought the identity of “each and every Union member within Dilling” and “each and every documents [sic] which identifies any and all union members within Dilling.” The trial court granted the union’s request for a protective order precluding the disclosure of the employee names. As an aside, for any employer considering a theft-of-trash action against employees, it should be noted that, on appeal, the Indiana Court of Appeals reversed the trial court’s summary judgment decision, holding that the company had abandoned the trash at issue.
The union filed unfair labor practice charges stemming from the employer’s filing of the state court lawsuit. In the course of the Board litigation, the Board’s general counsel changed position and requested withdrawal of the allegations that the company’s court action against the union and its organizer for removing the trash bags was an unlawful retaliatory lawsuit. The Board considered the withdrawal request to also apply to the allegations that the discovery request to obtain the names of employees joining the union was unlawful. It is well-settled that “once adjudication of a case has begun, the decision whether to grant the General Counsel’s request to dismiss all or part of the complaint is left to the Board’s discretion.” The Board refused to fully honor the general counsel’s withdrawal request. Rather, while it accepted the withdrawal of the retaliatory lawsuit allegation – as required under the clear standards set forth in BE & K Construction Co. – the Board did not accept the withdrawal of the discovery request issue. Instead, the Board affirmed the finding of an 8(a)(1) violation, basing its conclusion on: (1) the fact that the employer was a “repeat violator” of the Act; (2) the importance of protecting the confidentiality interests of employees; and (3) the Board’s belief that the discovery requests at issue were not relevant to the lawsuit, as evidenced by the court’s protective order.
Once again, it appears, the Board majority, remains steadfast in its efforts to deter what it perceives as anti-union litigation, even when faced with a request to withdraw by its own general counsel. Indeed, Member Hayes’s dissent explained that the general counsel’s motion to withdraw the discovery request allegation should have been granted procedurally. Addressing the merits of the case, Member Hayes commented that, unless evidence showed that the employees themselves had been made aware of the employer’s request for their names/identities, he would not have found any violation of the Act.
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