U.S. National Labor Relations Board

U.S. National Labor Relations Board before the San Francisco Branch

Case 28-CA-22892

Hyundai America Shipping Agency, Inc. Vs. Sandra L. McCullough

A customer service representative named Sandra McCullough alleged she was discharged because she complained to her employer about the harassment of a fellow employee by a supervisor, and her complaints about general supervisor misconduct. In all cases of harassment a demonstrated 'harm' must be done to the victim, in this case, the loss of a job. In response, Hyundai American Shipping Agency, Inc. stated that McCullough's allegations had nothing to do with her termination. Instead, McCullough's employer contended that it was her demonstrated untruthfulness and substance abuse that was the cause.

Firstly, McCullough was charged with instigating dissent amongst employees by using email and IMs inappropriately for personal use to wage a campaign against her employer. She was also charged with violating the employee handbook by complaining to her fellow employees about work conditions during lunch breaks. McCullough stated that her emails touched upon legitimate complaints that the workers at the facility had with management and that she did submit her complaints to her supervisors, as specified in the employee handbook. The court did find McCullough's actions to be in violation of the words of the employee handbook: "Voice your complaints directly to your immediate superior or to Human Resources through our 'open door' policy. Complaining to your fellow employees will not resolve problems. Constructive complaints communicated through the appropriate channels may help improve the workplace for all" (Hyundai, 2010, NLRB: 14). However, the court also found the language of the employee handbook to be overly broad and restrictive of employees' constitutional rights to complain about "any work related matters, including wages, hours, or working conditions, to fellow employees or to interested third parties, such as unions or governmental agencies. It directs employees to bring their complaints only to immediate supervisors or to the human resources department," else they will be subject to discipline (Hyundai, 2010, NLRB: 14). The employee handbook was extremely vague as to whether off-site employee lunch breaks were covered under the restrictions (McCullough met with her colleagues at a local Applebee's) and it also contained ambiguous phrases such as a prohibition of a generally "negative attitude" and spreading gossip (Hyundai, 2010, NLRB: 14).

In terms of the specifics leading up to the dismissal, McCullough had met with several employees outside of office hours to discuss workplace conditions, including one woman named Katelyn Hamilton whom was accusing their immediate supervisor of harassment. However, after the woman did not wish to pursue the complaint, McCullough had a falling-out with her. McCullough was noted for staging numerous scenes at work, including an argument with Hamilton, with whom she had co-signed an apartment lease. There were allegations that she had used illegal drugs on workplace premises. McCullough also paid a customer's demurrage fee out of her own pocket, allegedly to 'prove a point', stating that she believed that the company was in error for refusing to award it (Hyundai, 2010, NLRB: 9). McCullough's immediate manager who had accepted her check for the fee was issued a reprimand because of her action. Although there were no specific injunctions prohibiting workers from paying such fees, it was considered highly inappropriate and irregular. This action, along with allegations about McCullough's drug use, eventually led to her dismissal.

The fact that McCullough initially lied about reimbursing the customer, until presented with a check, as well as her practice of forwarding emails without notifying the sender beforehand were cited as the main reasons for her dismissal, as well as violating the employee handbook's prohibition about discussing work-related matters during work hours. McCullough stated she was being disciplined because of her complaints regarding what she saw as the hostile work environment at Hyundai.

The court found that although McCullough may have acted in a vocal and confrontational manner as an employee, based upon the evidence presented, the specific rules she was accused of violating were not clearly worded. McCullough had met with her colleagues to discuss her feelings during lunch outings, not on company premises. She also addressed numerous complaint letters and emails to management, thus following through with the employee handbook's wording about the need to consult with a supervisor, regarding any difficulties. These complaints were ignored, by and large, which only lead to further escalation of McCullough's activities. Even McCullough's email policies were not specifically prohibited according to the handbook.

Although McCullough may not, based upon her description, seem like the model employee in terms of her social persona, it should also be noted that she worked at her place of employment for five years and received satisfactory reviews. Hyundai agreed to this fact, and stated that it was only the last two months of her employment, because of her actions regarding the check, that she was fired. McCullough was deemed to have been fired for a just cause because of her dishonesty but the court noted that Hyundai's employment manual was not worded in an acceptable fashion, in its view and the company commanded overly broad control over employee behavior (Hyundai, 2010, NLRB: 26). While McCullough may have made a poor case, based upon her personal behavior, the court implied that the company's written policies were in need of reformation.

To respond to the court and to better deal with employees like McCullough, Hyundai should use the following as risk management techniques:

1. Its employee handbook must not merely prohibit 'negative' behavior or 'gossip' but must set clear policies regarding email and workplace communications, such as when it is acceptable to forward an email and what matters can be discussed over work email accounts.