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NEWS: Judge Rules Against Guthrie Theater in Retaliation Complaint

The cover of a July 5, 2019 decision by the National Labor Relations Board against the Minneapolis-based Guthrie Theater.

Yelled arguments bleeding through walls. Complaints answered with retaliation. Unanswered requests for Human Resources to assist and intervene. These are a small selection of the details that emerged in a recent case before the National Labor Relations Board. The opposing parties? The Minneapolis-based Guthrie Theater and the local chapter of the International Alliance of Theatrical Stage Employees.

On July 5, many area residents were sleeping off the after-effects of Red, White and Boom-related festivities. Off in Washington, DC, however, a judge was finalizing a ruling on matters in the Twin Cities. The backstory? A saga that came to public attention in January 2018, when two employees at the Guthrie Theater resigned, citing a hostile work environment and sexist culture in the theatre’s scene shop.

Unions and the NLRB

July 5 was also the 84th birthday of the National Labor Relations Board (NLRB), an organization established in 1935 to enforce U.S. labor laws. The NLRB’s particular mission includes mandates regarding collective bargaining and unfair labor practices, two areas of great concern in a nation in the depths of the Great Depression.

The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada – or IATSE as it’s more succinctly known – is old compared to the NLRB. IATSE was established in 1893, during an economic recession that saw more than 1 in 6 U.S. workers out of a job. This timing is not coincidental: both employer abuses and corrective actions (legal and union-driven) tend to be more pronounced during times of economic stress.

There are many different and overlapping jurisdictions that can apply in different labor matters. For internal matters, a company may have supervisors and human resources staff. For external matters, there are various courts and mediating bodies, depending on the exact complaint or dispute. One of the virtues of being an IATSE union member is that your chapter – in the Twin Cities, IATSE Local 13 – can go to bat for you. Court cases and hearings involving lawyers rarely come cheap, and are often quite protracted. It’s good to have friends in the right places.

Prior Review

Part of Molly Diers’ open letter, posted on Facebook on January 16, 2018, explaining her resignation from the Guthrie.

Before carpenters Molly Diers and Nathan Saul resigned from the Guthrie in January 2018, court filings show, they first voiced an array of complaints about to supervisors and human resources. As documented in an NLRB filing, the response was not positive. After Diers stated her concerns about sexist language and behaviors in her workplace, Judge Melissa M. Olivero stated, her supervisor gave her a poor evaluation for communication skills in her next performance review. Prior to the complaint, however, Diers had received positive annual review scores from the same supervisor – in 2016, an “Exceptional” score overall and “Good” (with no comments) for communication skills. Olivero’s filing states that “This downgraded performance evaluation was clearly meant to chill Diers’ exercise of protected, concerted activity and to discourage her from making such comments in the future.”

“Protected, concerted activity” is an important legal and regulatory distinction. With allegations of harassment and hostile work environments, much rests on the pervasiveness of the environment and how an employer reacts to reporting. Moreso, employees engaged in “protected, concerted activities” are legally protected against employer retaliation for these activities.

There are several places where workplace-related complaints can be brought for action. Diers and Saul stated that they had voiced their complaints to several parties at the Guthrie Theater, including Human Resources, without a positive outcome. Following their departure, however, the Guthrie Theater commissioned an independent investigation using an outside law firm. That investigation stopped short of supporting many of the allegations, but nevertheless reported multiple instances of “inappropriate physical contact” and inappropriate sexual remarks by Guthrie employees.

The law firm Faegre Baker Daniel’s Spring 2018 report on its investigation contains an interesting detail. Diers, it noted, was passed over for a promotion in favor of a candidate with inferior technical skills and superior communication skills. These latter skills were the same communication skills that Judge Olivero’s later noted were downgraded in her next employee review, in retaliation for filing a complaint. “This downgraded performance evaluation,” Olivero wrote, “was clearly meant to chill Diers’ exercise of protected, concerted activity and to discourage her from making such comments in the future.”

While the Faegre Baker Daniel investigation was underway, Diers filed a complaint of workspace gender discrimination with the Minneapolis Department of Civil Rights. MDCR’s responsibilities include enforcing Title 7 of the Minneapolis Code of Ordinances, which concerns non-discrimination in the workplace. This complaint ultimately went to arbitration; in late December 2018, attorney and professional arbiter Richard J. Miller concluded that a sexist culture was present at the Guthrie, but that the organization wasn’t required to rehire either Diers or Saul because the two had resigned. The Guthrie Theater, Miller stated, should pay both the arbitration costs and related attorney fees.

Much of the case before Judge Olivero hinged on the links between different actions and events.

The NLRB Case

As anyone who has ever engaged in a divorce can attest, legal proceedings can seem to move at alternately glacial and breakneck paces. Even as Miller was conducting his arbitration related to the MDCR, IATSE Local 13 was pursuing a separate case with the National Labor Review Board. That process began with a formal charge filed on February 26, 2018, amended and responded to in various interactions, and tried in Minneapolis on November 13-14, 2018. It is categorized as Case 18–CA–215022.

As Olivero noted, “The [National Labor Relations] Board has a long history of understandable skepticism regarding employers’ justifications of adverse employment actions based upon an employee’s attitude.” The review of multiple testimonies and Guthrie Theater emails, documented in Olivero’s decision, includes observations of emails about Diers’ complaints being met with derision.

The credibility of different witnesses was also a factor in the decision. In describing one of the Guthrie staff members who gave a conflicting account of events, Olivero noted “Her testimony was vague and appeared self-serving.” In another instance, Olvero observed that although two witness had “stated that there were other examples supporting the downgrading of Diers’ performance evaluation in the area of effective communication, no such examples were ever provided, either to Diers or at the hearing.”

Testimonies during the trial confirmed heated exchanges at the Guthrie related to the complaints.

The Decision

On July 5, the National Labor Relations Board found that the Guthrie Theater had violated the National Labor Relations Act. Judge Olivero made several recommendations for remedy, including that the organization:

  • Rescind the effective communication rating of “did not met expectations” from the performance evaluation of Molly Diers, given on October 6, 2017.
  • Remove from its files any reference to the unlawful downgrading of the effective communication rating of Molly Diers in her performance appraisal given on October 6, 2017 and notify her in writing that this has been done and that the rating will not be used against her in any way.
  • Within 14 days after service by the Region, post at its facility in Minneapolis, Minnesota, copies of the attached notice.

The next chapter in this story is still being written.

Read Judge Olivero’s full decision.

Basil Considine and Amy Donahue contributed to this article.

Hanne Appelbaum