By Richard H. Wessels, Esq.
Every now and then we come across a really good case that gives us a road map for what not to do. A recent decision by a NLRB Administrative Law Judge illustrates this point. The case is Alternative Entertainment, Inc. It was issued July 9, 2015 and was tried just a couple of months ago in Grand Rapids, Michigan.
The fact pattern involved protected concerted activity. In other words, there was no union involved. We are seeing more and more of these types of cases being decided by the NLRB. The legal theory here is that, even though union activity is not involved, if an employee is engaging in some kind of group protest or acting with others, it is protected by the National Labor Relations Act (NLRA). A discharge would violate the NLRA in the same way that a discharge for union organizing activity would be an unfair labor practice.
In the Alternative Entertainment case, the employee was one of 77 field technicians who did installation work and service for a Dish Network contractor. The contractor made several changes in compensation policy. The changes were not well received. The employee began talking with others about the changes in compensation policy and, of course, this is pretty clearly protected concerted activity.
After trial of the case, it took the ALJ little time to cut through the Company’s arguments. Here are some of the elements that led to the finding by the ALJ that the discharge was discriminatory and that the discharged employee was to be reinstated with full back pay:
- Vague reason for the termination – “our relationship isn’t working out”. The Judge called the reason “vague and transparently pretextual.”
- Suspicious timing – the Judge carefully analyzed Board case law and fundamental principle that “timing alone may suggest anti-union animus as a motivating factor in an employer’s action”.
- No prior indication that the Company was dissatisfied with the employee’s work.
- During the termination interview, the judge found that the Company ignored the employee’s inquiry for an explanation as to why he was discharged.
- Departure from usual disciplinary procedure of providing a warning.
- Several months before discharge the employee had broken Company sales records.
- Although the employee’s sales had recently declined, they still exceeded goals set by the Company.
Questions? Call Attorney Dick Wessels of Wessels Sherman's St. Charles, Illinois office: (630) 377-1554 or email him at riwessels@wesselssherman.com.
