Summary
The United States Court of Appeals for the District of Columbia Circuit reviews an NLRB order finding that Vermont Information Processing, Inc. unlawfully terminated four employees involved in creating and disseminating a salary-sharing spreadsheet. The court holds that substantial evidence supports the finding as to Christopher Bendel, but concludes that the Board improperly expanded its theory of liability for the other three employees to include uncharged discussions of workplace conditions. The court grants and denies the petitions in part and remands for further proceedings.
Topics
Practice areas
Questions Presented
- Whether substantial evidence supported the NLRB’s determination that VIP unlawfully discharged Bendel for protected concerted activity.
- Whether the NLRB violated VIP’s due-process rights by finding violations as to Dragoon, Noble, and Swift based on uncharged online communications concerning workplace conditions.
- Whether the NLRB’s reinstatement remedy for Bendel was within its remedial discretion.
- Whether VIP preserved its facial and constitutional challenges to the NLRB’s Thryv make-whole remedy.
Holdings
- Substantial evidence supported the NLRB’s determination that VIP unlawfully discharged Bendel because of his protected concerted activity in creating and disseminating the salary-sharing spreadsheet.
- The Board violated VIP’s due-process rights by expanding the protected-conduct theory to include online communications about broadly defined workplace conditions that were not charged in the complaint and were not closely connected to salary sharing.
- The NLRB acted within its discretion in ordering VIP to offer Bendel reinstatement, even though he had obtained other employment and might not wish to return.
- The court lacked authority under 29 U.S.C. § 160(e) to consider VIP’s facial statutory challenge to the Thryv remedy or its Seventh Amendment challenge because VIP did not adequately raise those arguments before the Board.
Key quotations
“Sharing salary information among employees is a protected activity under the National Labor Relations Act.” (2-3)
“We hold that substantial evidence supports the Board’s determination that VIP illegally fired one of the employees, Christopher Bendel. But with respect to the other three workers, the Board impermissibly broadened its theory of liability to include an additional consideration beyond the scope of the NLRB General Counsel’s complaint against the company.” (3)
““Workplace conditions” is a far-reaching category that can encompass anything from salaries to cafeteria options to interpersonal office dynamics.” (15-16)
Factual background
Vermont Information Processing employees Christopher Bendel, Gordon Dragoon, Kaleb Noble, and Kestrel Swift created and circulated a spreadsheet containing employee salary information after VIP announced a restructuring. Approximately twenty-five employees entered information, and management soon learned that Bendel had created the spreadsheet. VIP fired Bendel shortly after discovering the spreadsheet and fired Dragoon, Noble, and Swift the following day after reviewing messages concerning the spreadsheet, Bendel’s discharge, workplace frustrations, and other matters. The NLRB found that the terminations violated the NLRA and ordered reinstatement and financial relief.
Procedural history
Four employees filed an NLRB charge alleging that VIP fired them for salary-sharing efforts. An administrative law judge found violations of the National Labor Relations Act and ordered reinstatement and make-whole relief. The NLRB affirmed, clarifying that the protected conduct included online chats concerning the spreadsheet, workplace conditions, and Bendel’s discharge. VIP petitioned for review, and the NLRB cross-applied for enforcement.
Remand instructions
The Board’s conclusions that VIP committed unfair labor practices as to Dragoon, Noble, and Swift were vacated, and their cases were remanded for further consideration consistent with the opinion. The NLRB’s order was enforced as to Bendel, including reinstatement. The court did not reach VIP’s unpreserved facial or constitutional challenges to the Thryv make-whole remedy.