The National Labor Relations Board announced in September that a nearly $450,000 settlement had been reached between 10 unlawfully terminated employees and Big Green, a nonprofit founded by Kimbal Musk and headquartered in Broomfield. The nonprofit works to provide gardens and training to schools and homeowners.
According to a press release from the NLRB, the settlement was based on six unfair labor practice charges filed by the Denver Newspaper Guild-Communication Workers of America, which was the union the employees were attempting to join.
The charges were filed between 2021 and 2022 against the nonprofit, and they alleged that Big Green made threats of discipline and reprisals against its employees for engaging in protected concerted and union activity, discriminatorily enforced rules for their protected activities, disciplined employees for their union activity and ultimately laid off an entire proposed bargaining-unit of employees.
According to an administrative law judge’s decision in December 2023, the incidents began in 2021. In February 2021, a diversity, equity and inclusion council was created on the initiative of Big Green’s president. Soon after, members of the nonprofit’s Chicago team told the council that one of the organization’s initiatives seemed to be a copy of an initiative launched by a separate organization.
The DEI council drafted a statement of advocacy about the issue and sent it in a company-wide email. The same day, an executive acting as the head of human resources sent an email claiming the advocacy statement was at best inappropriate and at worst a violation of policy. The executive also pledged to hold those responsible for the statement accountable.
A few days later, she said if an individual didn’t come forward that she would hold the entire council responsible. Soon after, a member of the council said that the message was drafted and approved with unanimous consent of the council and that the group was committed to having the conversation with the executive and Big Green’s president.
The end result was the dissolution of the DEI council. The ALJ found that the statement of advocacy issued by the council was a protected activity under Section 7 of the National Labor Relations Act, and that the emails sent about holding those accountable could be reasonably interpreted as a threat. The ALJ also found that meetings held after the fact with individual members of the DEI council related to the statement of advocacy were also unlawful and violated the NLRA.
Later in 2021, according to the decision, a unionization effort within the nonprofit went public. An employee called in to a podcast and spoke about their efforts to unionize, which led to an email saying that the employee had violated the organization’s media policy. The ALJ found that the call in to the podcast was protected activity and that Big Green’s media policy also violated the NLRA.
Following the interview, the employee was also interrogated and threatened with discipline and termination, actions that the ALJ found violated the act. Another employee received similar treatment based on an Instagram post supporting the unionization efforts, for which that employee was suspended by Big Green. The ALJ also ruled that the post fell within protected activity.
A few months later, in September 2021, Big Green restructured and terminated 10 employees. The ALJ found that the termination was a violation under the NLRA, as the ALJ determined that both the timing and the circumstances were an effort to thwart unionization attempts.
The settlement, agreed upon last month, covers the 10 employees’ back pay, benefits and wages. In addition, Big Green is required to post, email, mail and read aloud a notice to its employees, and the nonprofit’s managers and supervisors have to attend an NLRB training.
“Workers have a right to take collective action free from employer retaliation. The work by Region 27 staff to obtain this settlement exemplifies their diligence and dedication to employees’ rights,” said NLRB Region 27-Denver regional director Matthew Lomax in a press release. “I’m extremely proud of their efforts here as this result is a critical part of restoring the ability of Big Green’s employees to exercise their rights.”
Big Green did not respond to Law Week’s request for comment.