Background
Vermont Information Processing, Inc. fired four software engineers after they created and shared a spreadsheet detailing their salaries. The National Labor Relations Board found the firings violated the National Labor Relations Act and ordered reinstatement and financial compensation. The company petitioned for review of the Board’s order.
The court’s reasoning
The court applied the Wright Line framework to determine if the firing was motivated by protected activity. For the first employee, Christopher Bendel, the court found substantial evidence supported the Board’s conclusion that the firing was unlawful. However, for the other three employees, the court found the Board violated due process by relying on online chat communications about workplace conditions that were not charged in the original complaint. The court also held that the company failed to preserve arguments challenging the financial remedy and the constitutional basis for the remedy.
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.
Opinion for the Court filed by Circuit Judge Pan
The dissent
I agree and would vacate that part of the NLRB’s order.
Circuit Judge Walker
What it means going forward
The decision reinforces that salary sharing is protected concerted activity but clarifies that the NLRB must strictly adhere to the scope of charges in complaints when finding violations against multiple employees. It also limits the ability to challenge established remedial frameworks on appeal if not raised before the Board.
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