July 16, 2019

July 16, 2019

Subscribe to Latest Legal News and Analysis

July 15, 2019

Subscribe to Latest Legal News and Analysis

Labor Board: Employee Conduct in Response to Employer’s Unlawful Actions Not Grounds for Discharge

An employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to participate in a performance evaluation scheduled for discriminatory reasons, the National Labor Relations Board (NLRB) has ruled, reversing the decision of an Administrative Law Judge (ALJ). United States Postal Service, 367 NLRB No. 142 (June 4, 2019).

In this case, an employee was reinstated by a labor arbitrator who ruled in his favor on a grievance challenging his termination. On the employee’s first day back at work, which was still within the employee’s 90-day probationary period, his manager told him he would be given a performance evaluation. The employer did not have a prior practice of doing so for probationary employees.

The supervisor told the employee his “work quality” and “dependability” were “unacceptable.” The employee argued with the supervisor. The employee eventually stated he “could not take this” and left. The next day, the employer discharged the employee for “improper conduct” at his evaluation.

The employee filed an unfair labor practice charge. After a trial, an ALJ found the employer had violated the NLRA because it discriminatorily had given the employee the performance evaluation in retaliation for the employee’s grievance. Nonetheless, the ALJ recommended dismissal of the employee’s charge. The ALJ reasoned that the employee could not refuse to cooperate in the evaluation, and none of the evidence indicated the employer’s assessment of the employee’s performance was discriminatory.

The NLRB’s General Counsel appealed the decision to the NLRB, and the NLRB reversed the ALJ. The NLRB noted that the employer did not file exceptions (appeal) the ALJ’s finding that conducting the performance evaluation was unlawful. The NLRB found the employee “would not have been at that meeting but for [the employer]’s unlawful actions—specifically ordering the evaluation as retaliation for [the employee]’s protected activity.” Although the NLRB acknowledged “that there could be circumstances where an employee’s misconduct at an unlawful meeting could be so extreme as to [justify the termination],” it determined the facts in this case fell short of that standard.

The NLRB’s decision re-confirms that employee conduct — even if otherwise inappropriate (up to a point) — cannot result in discipline if it arose in response to the employer’s unlawful conduct. Employers should carefully evaluate all of the circumstances leading to an employee’s alleged insubordination or inappropriate conduct before deciding whether to discipline the employee.

Jackson Lewis P.C. © 2019

TRENDING LEGAL ANALYSIS


About this Author

Jessica M. Marsh, Jackson Lewis, labor arbitrations lawyer, contract administration matters attorney
Of Counsel

Jessica M. Marsh is Of Counsel in the Minneapolis, MN, office of Jackson Lewis P.C. She is certified as a Labor and Employment Law Specialist through the Minnesota State Bar Association.

Ms. Marsh’s traditional labor experience includes assisting both unionized and union-free workplaces facing union organizing attempts, picketing and/or strike activity, and union election petitions. Ms. Marsh defends employers responding to unfair-labor practice charges at the NLRB Regional Offices and on exceptions to the NLRB. Ms. Marsh also represents...

612-359-1762
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000