HR Management & Compliance

Discharging Employees: NLRB Orders Non-Union Employer To Reinstate Worker Who Complained; Self-Defense Tips

An employee has been griping about your business practices almost from his first day of work. He shares his concerns with co-workers and then threatens to tell one of your clients about the problems. Before letting that happen, you decide to terminate him. Were you within your rights? According to a new ruling, the answer may be no. A federal appeals court has ruled that a non-union employer may have violated the National Labor Relations Act by firing an employee for threatening to tell a client about work-related problems. We’ll look at the new case and provide some tips for avoiding this trap for the unwary.


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Who’s Covered

The National Labor Relations Act (NLRA) applies both to employers with unionized workers and most non-union employers as well, regardless of how many employees you have. Besides protecting workers’ rights to engage in union organizing activities, the law also covers employees who join together to protest or seek changes in the terms and conditions of their employment.

New Employee Upset

The recent case involved a computer trainer named Laurence Schillinger, who was hired by Compuware on a temporary basis. Compuware provided trainers on contract to another company, Peat Marwick, to work on a special project upgrading a state government computer system.

From the beginning of his employment, Schillinger discussed his criticisms about working conditions, hours and overtime with other Peat Marwick employees. After being on the job for a little over a month, Schillinger organized a meeting with managers and trainers to discuss his objections. Schillinger told the lead trainer that if some action was not taken, he would tell the government client about the problems. But Peat Mar- wick had a work rule that prohibited complaining to clients about work conditions. The company’s agreement with Compuware also allowed it to decide which workers would remain on the project. So Peat Marwick asked Compuware to terminate Schillinger, which it did.

Board Says Gripes Were Protected

Schillinger filed a complaint with the National Labor Relations Board, which enforces the NLRA. The Board ruled Schillinger was acting on behalf of other employees when he threatened to inform the client about the problems. His actions therefore constituted “concerted,” or group, activity that is protected by the NLRA.

Compuware appealed the board’s ruling in federal court. It argued Schillinger was not engaged in concerted activity because his co-workers never authorized him to represent them, so he was not speaking on behalf of a group. But the court disagreed and ordered Compuware to rehire Schillinger and pay his lost wages.

Co-Worker Authorization Not Needed

The court said the NLRA protects an employee even if co-workers haven’t authorized the person to speak for them. The key is whether the employee was acting to further group goals.

In this case, the court concluded Schillinger’s actions met this requirement. The court pointed to the fact that Schillinger talked about his work-related concerns with other employees and organized a lunch meeting to discuss the issues. Compuware also argued that Schillinger’s termination was warranted because he threatened to violate a Peat Marwick rule prohibiting complaints to clients about working conditions. But the court said the company’s policy was invalid because it restricted employees’ rights to engage in protected activity.

How To Prevent Problems

If you have non-union workers, you may not think much about the NLRA and how it can tie your hands in disciplining or terminating employees. But as this case demonstrates, you can get into trouble when you take action against an employee who has complained about working conditions. To protect yourself, follow this three-step approach:

  1. Evaluate whether the activity relates to terms and conditions of employment. Employee complaints about workplace health and safety, wages, hours, benefits, discipline and union organizing are all covered by the NLRA. But maliciously false statements about company management or practices are not protected.
  2. Find out if there’s group activity. The law protects only group activity, so an employee raising purely personal complaints probably isn’t covered. But if an employee acts with others or seeks to get the support of co-workers, the conduct is likely to be protected. And simply discussing work-related concerns with co-workers can sometimes be enough to protect the complaining employee even if the co-workers don’t specifically say they want the person to speak for them.
  3. Reevaluate the situation. If you think there is a possibility that the conduct involved could be considered a protected group activity, it may be better to back off and try to find another way to resolve the situation short of terminating or disciplining the worker.