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Employment Blog

NLRB Judge to Employer: Stated Reason for Terminating Employee Who Complained About Pot is Smokescreen

Authored by Ruder Ware Attorneys
Posted on January 6, 2015
Filed under Employment

Recently, an administrative law judge (“ALJ”) for the NLRB concluded that a casino employer’s stated reason for terminating an employee (“Schramm”), who complained about the risks of inhaling second-hand marijuana smoke, were not genuine—and the termination of employment violated the NLRA. The case is Circus Circus Casinos, Inc., and is available here:  Circus Circus Casinos, Inc.

This decision is an important reminder to both union and non-union employers that employee complaints often give rise to protection under the NLRA. In this case, Schramm, along with another coworker, complained about ingesting second-hand marijuana smoke while performing carpentry services within occupied casino hotel guest rooms. Management responded that the risk of testing positive for the presence of marijuana, if casino carpenters were tested pursuant to the procedure within the collective bargaining agreement, was extremely low and did not merit further action by management. Schramm challenged management—questioning management’s competency to offer an opinion he believed required a professional medical education. Management responded by suggesting that the casino employer would not have further need of Schramm’s services. However, nothing happened—and Schramm remained employed.

Later, Schramm refused to sit for a respirator fitting at a local clinic—hoping to subsequently obtain an exemption due to anxiety issues. According to the company’s policy, an employee has the right to discuss the content of the respirator exam, pre-fitting questionnaire, with the physician administering the exam, before being tested. Upon refusing to sit for the fitting, Schramm was not afforded this opportunity. Nevertheless, the casino terminated Schramm’s employment as a result of his failure to submit to the respirator fitting.

According to the ALJ:

Schramm was engaged in protected activity [protected by the NLRA]. Employees who seek to improve wages, benefits, working hours, their physical environment, dress codes, assignments, responsibilities, and other similar employment-related items are dealing with conditions of their employment as set forth in Section 7 [of the NLRA]….[I] find that Schramm and [his coworker] were engaged in protected, concerted activity in seeking to improve their physical environment by determining whether exposure to second-hand marijuana smoke could affect their safety and whether it might affect the results of a drug test if an accident occurred while they were exposed to this smoke.

The ALJ determined that Schramm’s complaint about second-hand marijuana smoke was one of several motivating factors in the casino’s decision to terminate his employment—which is sufficient to support a violation of the NLRA absent the casino’s ability to demonstrate that it would have terminated Schramm’s employment even in the absence of his complaint about second-hand marijuana smoke. The ALJ was not persuaded that the casino would have terminated Schramm’s employment in the absence of his complaint, because: (1) he was not afforded an opportunity to question the doctor administering the respirator fitting exam, per the policy; and (2) management suggested, in response to Schramm’s critical comments, that Schramm’s services might not be needed. Just like that—poof—the casino’s justification for the termination decision went up in smoke.  Accordingly, the ALJ concluded that the company’s stated justification for the termination decision was a pretext.

Given that employees are increasingly raising NLRA violation claims on the heels of being fired, both union and non-union employers are strongly encouraged to consider whether the specific employee actions/behaviors underlying a particular decision to terminate employment is protected activity under the NLRA. If so, employers must conduct a thorough cost-benefit analysis before making any decision impacting continued employment. Pulling the trigger on a termination decision without conducting this scrutinizing analysis is a bigger gamble than a game of roulette.