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In applying a standard Wright Line analysis of whether employee activity constitutes conduct protected by Section 7 of the NLRA, the Board, in Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No. 19 (2014), has taken one of its factors to a new level. An employee was discharged for the tone of her e-mails to supervisors, which the employer concluded violated a rule prohibiting “inappropriate behavior” in the workplace. In finding the employee was instead discharged for her protected concerted activity, the Board demonstrated that it expects employers to scrutinize the minutest of grammar and that such minute grammar points establish knowledge. In this case, the ALJ and the Board referred to a conversation between an employee and two coworkers regarding a company inclement weather policy. The employer had no knowledge of this conversation. The employee subsequently wrote several e-mails to her supervisors without copying any fellow employees. In the email, the employee repeatedly stated “I did not know, “I think,” “I feel I should be paid,” “I understand,” “I was not told,” and “I do not agree,” among other personal, individual statements. However, because the employee also wrote that the policy should have been explained to “us” and that “we” should receive compensation time, the Board concluded the evidence “clearly demonstrates” the employer “knew or suspected” that the employee had engaged in protected concerted activity with and in support of her coworkers when she complained about the inclement weather policy in her e-mail correspondence. The absurdity of the result is aptly described by Member Miscimarra who cites Reynolds Electric, Inc., 342 NLRB 156, 157 (2004), in opining the standard is whether the “decisionmaker knew the activity was concerted, ‘not whether the decisionmaker should or reasonably could have known.’” Further, the Board determined that the company invoked its “inappropriate behavior” work rule in discharging the employee for her “concerted” conduct, thereby making the rule unlawful as applied. Given the application of the rule to conduct found to be protected, the Board declined to decide whether the rule itself was unlawfully overbroad.
The case serves as a cautionary tale for companies regarding the potential concerted activity the Board might find hidden in solo correspondence received from an employee.