NLRB Advice Memoranda, Huntington Ingalls Industries, National Labor Relations Board, (Jul 12, 2022)

The Region submitted this case for advice on whether this case is an appropriate vehicle to urge the Board to expand the doctrine of inherently concerted activity as well as the lawfulness of several Employer work rules. Specifically, the charges allege that the Employer unlawfully terminated the Charging Party for engaging in protected concerted activity and maintained unlawfully overbroad work rules including a dignity and respect rule, mobile phone rule, abusive language rule, and no-solicitation rule. We conclude that there are no violations of extant law and therefore this case does not provide an appropriate vehicle for advocating for any changes in law to the Board. Therefore, the Region should dismiss, absent withdrawal, all of the submitted allegations.

The termination at issue stemmed from an interaction between the Charging Party and a Security Guard at the Employer's shipyard in Pascagoula, Mississippi. On ​     ​ 2021, the Charging Party ​     ​ was walking with ​     ​ Co-Worker (​     ​) towards the exit gate at the end of their shift. There were two additional employees walking slightly behind the Charging Party and the Co-Worker. A Security Guard drove up behind the four employees in a truck and chirped the siren, but did not have on lights or full siren. The four employees eventually moved to the side of the path. The Security Guard pulled up next to the Charging Party and the Co-Worker, rolled down the window, and said, “You ​     ​ got a problem?” The Charging Party responded, “As a matter of fact I do, I stopped being a ​     ​ a long fucking time ago.” The Security Guard then got out of the truck and stood in an aggressive posture with fists balled up. The Charging Party said, “We don't need to fucking do that.” There was then additional verbal interaction between the Charging Party and the Security Guard in which the Charging Party admittedly used curse words, but at no point threatened the Security Guard. The Security Guard told the Charging Party to hand over ​     ​ badge, which the Charging Party reluctantly did. The other two employees walked past the Charging Party and the Security Guard during the interaction but were not otherwise involved.

The Employer conducted an investigation of the incident, including interviewing the Security Guard and employee witnesses to the interaction between the Charging Party and the Security Guard. On ​     ​ the Employer called the Charging Party to the shipyard and interviewed ​     ​ about the incident. The Employer's Labor Relations Representative then told the Charging Party ​     ​ was terminated for violating the Employer's dignity and respect rule by cursing out a security guard on ​     ​ There was no mention of any other reason for the termination.

We conclude that the Charging Party was not engaged in protected concerted activity under extant law during the interaction with the Security Guard. While the Charging Party later claimed ​     ​ was protesting the Security Guard's use of racially harassing language on behalf of the Co-Worker, there is insufficient evidence that this conduct was concerted. There is no evidence of any discussion between the Charging Party and the Co-Worker about the Security Guard's use of the term ​     ​” or any discussion among the Charging Party and other employees about the use of such language in the workplace generally, much less any plan or call for group action. The issue of racially harassing language in the workplace is not connected to the shift change issue, so the Charging Party's response to the Security Guard cannot be considered the logical outgrowth of any protected concerted activity ​     ​ may have engaged in with respect to the shift change. Additionally, despite responding to the Security Guard in front of the Co-Worker, the Charging Party's conduct would not meet the standard for inferring concert in the group meeting context under Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 7 (2019) [1] . Therefore, there is no merit under extant law to the allegation that the Employer terminated the Charging Party for engaging in protected concerted activity. Since there is no related violation under extant law, see infra, it is unnecessary to analyze these rules pursuant to the General Counsel's proposed standard in Starfish Family Services, supra; see also American Federation for Children, supra.

Since there is no related violation under extant law, this case is not an appropriate vehicle to seek to extend the doctrine of inherently concerted activity. ​     ​ Additionally, since we find that the Charging Party was not engaged in protected concerted activity, the Employer did not apply its dignity and respect rule to protected concerted activity and this case does not provide a vehicle to seek to overturn AT&T Mobility, LLC, 370 NLRB No. 121 (2021).

We find that each of the submitted rules are lawful under extant Board law [2] . The dignity and respect rule is a lawful civility rule under Boeing. See Motor City Pawn Brokers, 369 NLRB No. 132, slip op. at 3, 7 (2020), citing The Boeing Co., 365 NLRB No. 154, slip op. at 4, fn. 15 (2017); Bemis Co., 370 NLRB No. 7, slip op. at 2-3 (2020) (holding rule that required employees to communicate in a respectful and professional manner was lawful Category 1(a) civility rule). The mobile phone rule prohibiting recording with personal cell phones is also lawful under extant law. See BMW Manufacturing Co., 370 NLRB No. 56, slip op. at 4 (2020) (finding lawful rule prohibiting use of personal recording devices without prior management approval), citing Boeing, 365 NLRB No. 154, slip op. at 17. Further, the abusive language rule is also lawful under extant law. See Boeing, 365 NLRB No. 154, slip op. at 4, 15; cf. Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004) (finding lawful rule prohibiting “abusive and profane language”). Since there is no related violation under extant law, it is unnecessary to analyze these rules pursuant to the General Counsel's proposed standard for employer work rules found in the General Counsel's brief in Stericycle, Inc.

Finally, we conclude that the Employer's solicitation policy is lawful under extant law. Employers may lawfully prohibit solicitation during working time. Enloe Medical Center, 345 NLRB 874, 875 (2005) (“It is well settled that employers generally may ban solicitation by employees during working time…”), citing Our Way, 268 NLRB 394, 395 (1983). Further, the exception for “traditional charitable causes” does not make the policy unlawful pursuant to the Board's current discrimination standard. See Register Guard, 351 NLRB 1110, 1118 (2007) (unlawful discrimination consists of an employer discriminating “along Section 7 lines,” but an employer may validly draw a line between charitable and noncharitable solicitations, individual and organizational invitations, or make any other non-Section 7 distinction), enforced in relevant part and remanded sub nom. Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009) [3] . Since the policy is lawful under extant law, this case does not provide an opportunity to urge the Board to overturn the discrimination standard from Register Guard ​     ​

This email closes this case in Advice. Please contact us with any questions or concerns.