NLRB: Stealing Time Wasn't Enough for Final Warning

​A final warning against a union-organizing employee for "stealing time" was ruled unlawful by the National Labor Relations Board (NLRB) partly because the warning was more severe than discipline for similar or worse time stealing by other workers. The employee was, however, lawfully fired for violating safety rules later, the NLRB decided in Genpak LLC.

"This case is a good example of what often trips up employers: inconsistent discipline," said Thomas Payne, an attorney with Barnes & Thornburg in Indianapolis.

Clearly delineate and communicate workplace rules. "All employers should have strict requirements about employees clocking in before performing any work and clocking out before conducting any other personal business at the end of a shift," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas.

Dawdling Before the Time Clock, Followed by Safety Violation

A supervisor who was reviewing camera footage around a time clock while trying to locate an employee who had not returned from a break saw a different employee—who had been a primary union organizer—standing in front of the time clock for about 10 minutes before clocking out. The company issued the worker a final written warning for stealing time.

The business subsequently discharged the employee for violating the company's zero-tolerance lockout/tagout policy by placing his entire upper torso past a machine's guards to look inside the machine while it was still running. The policy made clear that violation was grounds for immediate discharge.

The NLRB decided that the company would have fired the employee for this violation even in the absence of his protected activity.

The final warning, however, was deemed a violation of the National Labor Relations Act. The board found it was relevant that, six months before the warning for stealing time, the company suspended the employee just a few days prior to an election, which the union lost. The suspension was relevant even though the company recalled the worker from the suspension and paid him for the time he had been suspended.

Other workers got less severe discipline for stealing time, the NLRB said. The board noted that one employee got a verbal warning despite stealing 34 minutes of time. Another employee got a verbal warning for sitting down while her machine was idle when she was expected to be cleaning. In addition, the company issued another employee a nonfinal written warning for sleeping in a maintenance shed while on the clock and for failing to attend mandatory safety meetings.

The more severe discipline issued to the union-organizing employee was inconsistent with the company's progressive discipline policy, said Thomas Servodidio, an attorney with Duane Morris in Philadelphia. "The employer was not able to prove it would have issued the discipline in the absence of the employee's union-organizing activity," he stated.

'Slippery Slope'

The board also found relevant that the employee once was almost disciplined for lockout/tagout violations by other employees, which the board said "demonstrates an effort to target him for an unprecedented form of discipline."

"There seems to be a due process concern for the board punishing an employer for something it did not actually do," said Josh Nadreau, an attorney with Fisher Phillips in Boston. "It also creates a slippery slope as to what constitutes serious consideration of near-discipline."

Does an employer's investigation of alleged misconduct constitute serious consideration? Is serious consideration of near-discipline not until the employer documents its investigation?

"The board's decision here disincentivizes employers to take their time and thoroughly investigate potential policy violations," Nadreau said.

Key Lessons

Even if there is a progressive discipline policy, serious infractions—like violence or threats in the workplace—can lead to immediate discharge, said Allison Anderson, an attorney with Foley Hoag in Boston.

So can lockout/tagout violations because such policy violations can lead to death or serious injury, Payne noted.

That said, Servodidio added, a key takeaway from the board's decision is to avoid skipping steps in a progressive discipline policy absent extenuating circumstances.

Other key takeaways, he said, include:

• Ensure there is a strong business reason for discipline.
• Treat similarly situated employees in the same manner with regard to discipline.
• Ensure HR and operational policies articulate the employer's job expectations and the type of discipline that will result for policy violations.
• Conduct a full and fair investigation so there is clear proof of a policy violation.

HR and the management team should monitor discipline under the employer's policies to ensure that similar conduct by employees results in the same level of discipline under a progressive discipline policy, Servodidio said.