Court Finds Insult, Not Injury in Worker Newsletter About Benefits Department

August 22, 2003 ( - A worker who distributed a newsletter claiming that his employer was misleading employees about their benefits - and that the benefits department was not bright enough to figure it out - has won his case against disciplinary actions taken against him.

>In an unpublished decision reported by the Bureau of National Affairs, the US 6th Circuit Court of Appeals held that Honda of America Manufacturing Inc. committed an unfair labor practice by disciplining and suspending employee and labor union advocate Donald Alan DeWald for actions that the company found violated its standards of conduct for employees.  

Rule 13

>Specifically, Honda said portions of DeWald’s newsletter ran afoul of “Rule 13” of its Associates Standards of Conduct, which prohibits an associate from using “abusive or threatening language about a co-worker or creating an intimidating, hostile, or offensive working environment.”   Honda had enforced Rule 13 “many times” since its inception, according to the court, including a previous instance against DeWald for a newsletter that referred to a Honda bonus program as the “bone us” program.    

>Notwithstanding, Judge Jennifer Coffman concurred with the National Labor Relations Board’s order requiring Honda to cease and desist from interfering with DeWald’s rights under the National Labor Relations Act, to compensate him for any loss of earnings or other benefits, to remove any reference to the discipline from its files, and to post copies of a remedial notice.

Employment History

>DeWald was employed at Honda’s East Liberty, Ohio, plant since October 1, 1990. The court noted that throughout his tenure DeWald had distributed “numerous newsletters and other materials expressing his support for a union and his objections to various terms and conditions of his employment with Honda.”   

>In May 1998, he contacted benefits manager Kim Ryan via an “Associate Communication Line” form, expressing concerns that the Honda benefits book contained inaccuracies.   Two months later Laura Solomon, a benefits department employee, met with DeWald, and shared written responses to his concerns from Ryan.   DeWald was dissatisfied with the response, which denied any inaccuracies, according to the court.   Two additional meetings with Solomon ensued – but Ryan refused to meet with DeWald, claiming that her written response was sufficient.

>In October 1998, DeWald distributed the newsletter at issue.   The court noted that, when viewed in context with other newsletters distributed by DeWald, this newsletter implied that Honda purposefully had misled its employees so that they would not realize that a union would provide them with better benefits.   In the newsletter, DeWald outlined his meetings with Solomon, and said she "hadn't even been here long enough to have a benefit booklet of her own. The person Honda used to address this concern was someone who had no knowledge or hands on experience with the matter at hand."

>The newsletter went on to note Ryan's refusal to meet with DeWald, and he went on to note, "Either [Solomon] was not thoroughly conveying my facts to Ms. Ryan, or Ms. Ryan was not smart enough to figure out simple math, which is highly unlikely for the manager of Benefits."

>Having determined that the newsletter violated the provisions of its Rule 13 standards of conduct, and since DeWald had been previously reprimanded for Rule 13 violations, Honda disciplined DeWald by ordering a "manager-level counseling session" and a three-day suspension.

NLRB Holding

>The National Labor Relations Board (NLRB), responding to a discrimination charge filed by DeWald, concluded that Honda violated the NLRA by disciplining DeWald for the comments he made while engaging in protected activity - and ordered Honda to:

  • cease and desist from interfering with DeWald's NLRA rights
  • compensate him for any loss of earnings
  • remove any reference to the discipline from its files
  • post copies of a remedial notice.

>Honda had asked the court to strike down the NLRB decision, noting that the board had relied on a test under which otherwise protected activity could become unprotected if the employee uses sufficiently opprobrious, profane, defamatory, or malicious language. Honda claimed this interpretation was unsupported by case law, and that it failed to account for the broader context of the worker's actions.

>However, the court, while noting that the 6th Circuit or the Supreme Court had not explicitly adopted the test, went on to find that "elements of the test do find support in the case law."   Additionally, the court found that context had been used by both the court and the NLRB in their determinations.  

>The court also held that, while DeWald's statements may have been insulting to both management and a fellow employee, it sided with the NLRB, which had concluded that, on balance, the statements constituted protected activity under the Act.

>Judges Eric L. Clay and John M. Rogers joined in the ruling.

>The case is NLRB v. Honda of Am. Mfg. Inc., 6th Cir., No. 01-2350, unpublished 8/14/03.