Petition for Writ of Certiorari — Compuware Corp. v. National Labor Relations Board

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

fy \ Supreme Cour, US

VY) FILED

O9FV1L7FID APR 20 1998

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

COMPUWARE CORPORATION,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue UNitrep States Court Or APPEALS

For THE SrxtH Circuit

PETITION FOR WRIT OF CERTIORARI

ERNEST R. BAZZANA

COUNSEL OF RECORD

PLUNKETT & Cooney, P.C.

243 West CONGRESS

SulTeE 800

Detroit, MI 48226-3260

ATTORNEYS FOR PETITIONER

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

Whether the Administrative Law Judge, the National Labor

Relations Board and the Sixth Circuit erred in finding that

the charging party had engaged in concerted activity, when

the record utterly fails to show that any other employee had

authorized the charging party to act on his or her behalf.

Whether the Administrative Law Judge, the National Labor

Relations Board and the Sixth Circuit erred in the

conclusion that the employer’s client, Peat Marwick, was

absolutely precluded from promulgating a work rule which

prohibited employee communications of work-related

concerns to Peat Marwick’s client and, for that reason, in

failing to balance the legitimate interests protected by the

work rule against any incidental effect on employee rights

under the Act.

Whether the Administrative Law Judge, the National Labor

Relations Board, and the Sixth Circuit erred in failing to

address the issue of employer knowledge of the asserted

concerted nature of the charging party’s activity as an

element required to be proven by the Board.

PARTIES TO THE PROCEEDING

Petitioner! ;

Compuware Corporation’

R lent/ iti

National Labor Relations Board

| ihe FCRIII? PS

Compuware Corporation has no parent company or

subsidiaries to list pursuant to Rule 29.6.

TABLE OF CONTENTS

a i i

PRR CAF RUUD URI gg cee ees ii

SN eg oe ore Ge hk ea ck iii

DE TEED irk wine hw Veen cee bps V

RENEE Ht co Pe I ee O Ne PaO Ne er l

I Ps tae ge ag are l

aPU EMEA I RUMEN 6 kc bce te ew a eve en l

REASONS FOR GRANTING THE WRIT ............ 11

EROS SG EIA iat Tiare ee Oy a 12

Argument I

The Administrative Law Judge, the National Labor

Relations Board and the Sixth Circuit errred in

finding that the charging party had engaged in

Ng eee co iw gn ows 12

Argument II

The Administrative Law Judge, the National Labor

Relations Board and the Sixth Circuit erred in the

conclusion that Peat Marwick was absolutely

precluded from p:omulgating a work rule which

prohibited employee communications of work-

related concerns to Peat Marwick’s client and, for

that reason, in failing to balance the legitimate

interests protected by the work rule against any

incidental effect on employee rights under the Act.

ill

Argument III

The Administrative Law Judge, the National Labor

Relations Board, and the Sixth Circuit erred in

failing to address the issue of employer knowledge

of the asserted concerted nature of the charging

party’s activity as an element required to be proven

ee I eas ET ee a ek es 29

Ce ie ORE AEF EC ECCE SEO RES 30

APPENDIX

Appendix A

Decision of Administrative Law Judge, dated

eee ST eT ECW ER Al

Appendix B

National Labor Relations Board Decision and

CE NE SPS Bk eR ee ee eo ee A2i

PE ce eon 6 SA as 8 a A38

I a Sie oe ae be ae ee A39

Appendix C

Order Denying Motion for Reconsideration of

December 18, 1995 Decision and Order dated

POE 0, SOE 6 oe ke ee EERE REED OS A4l

Appendix D

Decision of the United States Court of Appeals for

the Sixth Circuit, dated 1/28/98 ............. A45

Appendix E

Order of the United States Court of Appeals for the

Sixth Circuit Denying Rehearing, dated 3/13/98 .. A60

TABLE OF AUTHORITIES

Cases

ARO, Inc. v. N.L.R.B.,

FOE Oe Fg Fa tks © TON 6 5 eS eS 13

Aroostook County Regional Ophthalmology Center

v. N.L.R.B., 81 F.3d 209, 214 (DC Cir. 1996) .... 21

Ajax Paving Industries, Inc. v. N.L.R.B.,

133 ¥.26 1214, 1216 (C.A. 6 1969)... 26. es ses 29

Handicabs, Inc. v N.L.R.B.,

95 F.3d 681, 684-685 (C.A. 8 1996)........... 28

Jeannette Corp. v. N.L.R.B.,

Foe ae SPIO CA. So TOTO) be a ea ke 11, 22, 28

Jim Causley Pontiac v. N.L.R.B.,

G20 F.26 122, 1260. 7(C.A. 6 1980)... 2... 13, 14

Manimark Corp. v. N.L.R.B.,

Fee OF sd OPO) vc ke 6 cho Ow 12, 14

N.L.R.B. v. City Disposal Sys., Inc.,

465 U.S. 822, 837; 104 S. Ct. 1505, 1514;

TR hs es BO I hh i ao ee le 21

N.L.R.B. v. Fleetwood Trailer Co., Inc.,

FO A Dai STRIPE) 8A Ri owes 11, 22

N.L.R.B. v. Jemco, Inc.,

465 F.2d 1148, 1152,n7(C.A.61972) ....... 22

N.L.R.B. v. Mike Yurosek & Son, Inc.,

Se Oe ee ace LY ees hee bec 21

N.L.R.B. v. Redtop, Inc.,

Ge ee Fe ee UD 5 kde a hie 22, 23, 24

N.L.R.B. v. Truck Drivers Oil Filling Station

and Platform Workers’ Union,

630 F.2d 505, 508 (C.A. 7 1980)........... 26, 27

Prill v. N.L.R.B.,

835 F.2d 1481, 1483 (C.A. D.C. 1987)

cert. denied 487 U.S. 1205;

108 S. Ct. 2847; 101 L. Ed. 2d 884 (1988) ...... 16

Republic Aviation Corp. v. N.L.R.B.,

324 U.S. 793, 803 n. 10; 65 S. Ct. 982;

Se ai. Oe. Rc oa FR Che ee ees 21

Texas Instruments, Inc. v. N.L.R.B.,

pg wo Soak Se | | Sa ee ar eeee 11, 28

Union Carbide Corp. v. N.L.R.B.,

714 F.2d 657, 664 (C.A. 6 1983) ........... 11, 21

Statutes

National Labor Relations Act, Section 8(a)(1) .......... 12

Federal Rule of Appellate Procedure 15(a) ............. l

ae Shc RUE 5's Oak CURES CES La wee eee l

et Se EE kb -0.d vic 8. bie 40 Bie 4 ad ee ed 8

er Oe hs ES ois <5 e 5K be Oe Oe en oe ke 8

- bm Sod, BRP tpg ew DE SLO Ach gers Mes: l

OPINIONS BELOW

The opinion of the United States Couri of Appeals for the

Sixth Circuit was filed on January 28, 1998. It is reported at 134

F.3d 1285 (C.A. 6 1998) and a copy is set forth in the within

appendix. (App. D; pp. A45-A59)*. A decision was issued by

Administrative Law Judge James L. Rose on September 7, 1995.

A copy is set forth in the within appendix (App. A; pp. Al-A20).

On December 18, 1995, the National Labor Relations Board issued

its Decision and Order in this matter. A copy is set forth in the

within Appendix (App. B; pp. A21-A40).

JURISDICTION

The judgment of the United States Court of Appeals for the

Sixth Circuit was entered on January 28, 1998. The Sixth Circuit

had appellate jurisdiction pursuant to 29 U.S.C. §160(f) and

Federal Rule of Appellate Procedure 15(a). The Petition for

Rehearing and Suggestion for Rehearing En Banc was denied on

March 13, 1998.

The Petition for Writ of Certiorari is being filed within

90 days of the denial of rehearing. This Court’s jurisdiction is

invoked under 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

In 1993, the State of Michigan contracted with KPMG Peat

Marwick (hereinafter "Peat Marwick") to implement a new

computer system called the Michigan Administrative Information

Network, commonly referred to as M.A.I.N. (Tr., p. 128; Apx.,

p. 222). The Respondent, Compuware Corporation, was contracted

by Peat Marwick to provide computer training personnel for Project

? Citations to “App.” are to the appendix filed with this petition

for writ of certiorari pursuant to Supreme Court Rule 14(i). Citations to

“Apx.” are to the joint appendix filed in the Sixth Circuit in this case.

M.A.I.N., by which the Compuware trainers would teach

M.A.I.N. systems application to State employees. (Tr., pp. 127-

128; Apx., pp. 221-222)

At the commencement of the project, Peat Marwick

instituted a work rule, applicable to all Compuware employees,

which precluded Compuware employees from directly approaching

Peat Marwick's client, the State of Michigan, about any work-

related concern unless Peat Marwick specifically gave permission.’

(Tr., pp. 142-143; Apx., pp. 236-237) All Compuware employees

were informed of this work rule during their orientation at the

commencement of their employment. (Tr., pp. 322-323; Apx., pp.

356-357) J. Michael Mutter, the Peat Marwick executive in charge

of the training portion of Project M.A.I.N., testified that the reason

for the work rule was to preserve the relationship between Peat

Marwick and the State of Michigan, to avoid embarrassment and to

maintain an orderly chain of command and system for addressing

any issues that might arise relating to contract employees. (Tr., p.

146; Apx., p. 240)

In addition to instituting the rule precluding Compuware

employees from approaching the State of Michigan, Peat Marwick

also reserved the right, by contract, to approve hiring of

Compuware employees and to require removal of Compuware

employees from Project M.A.I.N. (Tr., pp. 128, 130; Apx., p.

222, 224) If Peat Marwick requested a Compuware employee be

removed from Project M.A.I.N., Compuware was contractually

required to do so. (Tr., pp. 128, 130; Apx., pp. 222, 224)

Depending on the circumstances, such as employment status,

marketable skills and the nature, frequency and severity of the

problem or offense, Compuware might attempt to place that

employee at another client site, terminate the employee or allow a

‘ This work rule did not apply only to Compuware. Mr.

Mutter testified that the same work rule is instituted in any case where a

subcontractor is hired by Peat Marwick to provide services to a client of

Peat Marwick. (Tr., pp. 142-143; Apx., pp. 236-237)

temporary assignment to simply end by its terms. (Tr., p. 249;

Apx., p. 307)

The charging party, Laurence Schillinger, was hired by

Compuware on July 14, 1994 as a Computer Applications Trainer

to work specifically on Project M.A.IL.N. (Tr., pp. 19-20; Apx., p.

159-160) Schillinger testified that he knew at the time he was hired

that he was only a temporary employee, and that his term of

employment was to expire at the termination of Project M.A.I.N.

(Tr., p. 20; Apx., p. 160; see also Written Offer of Employment,

admitted as R1*; Apx., pp. 143-144) Schillinger was employed by

Compuware for five (5) weeks. (Tr., p. 19; Apx., p. 159)

At the time Schillinger was hired, he was assigned a

Compuware "Master Trainer” and a Compuware "Team Leader",

to which he was to report work-related complaints and concerns.°

(Tr., pp. 87-88, 103; Apx., pp. 203-204, 208) Schillinger testified

that he was aware of the "chain of command" which he was

required to follow in order to address work-related concerns or

complaints. (Tr., p. 25; Apx., p. 163) In addition, Compuware

trainers had other avenues available in which to voice employee

concerns, including weekly “heads-up” meetings, a written

employee complaint procedure, reporting to Compuware

* The exhibits of Compuware were identified as R1 et seq, which

reflects Compuware’s status of respondent before the National Labor Relations

Board. The exhibits of the National Labor Relations Board were identified as

GC (General Counsel’s) 1 ef seq.

° Master Trainers are Compuware employees responsible for training

and coaching other Compuware trainers, assisting in administrative duties and

consulting and resolving employee issues. (Tr., pp. 318-320; Apx., pp. 352-

354) In addition, a job position of "Senior Master Trainer” was created to

coordinate the activities of other Master Trainers and resc .. personnel issues.

(Tr., p. 319; Apx., p. 353) A Compuware Team Leader is an employee

designated as a primary communication source for Compuware trainers to

voice work-related concerns and to assist in administrative tasks. (Tr., p.

325; Apx., p. 358)

management or reporting to Peat Marwick management. (Tr., pp.

220-221; Apx., pp. 292-293; see also Compuware Employee

Problem Solving Procedure, admitted as R3)

Soon after Project M.A.I.N. began, Peat Marwick and the

State of Michigan realized that they had underestimated the volume

of training that needed to be undertaken, and some problems arose

in regard to working hours, facilities and course materials for

Compuware employees. (Tr., pp. 140-141, 321; Apx., pp. 234-

235) Trainers, such as Schillinger, were required to work an

average of fifty (SO) hours per week (Tr., p. 330; Apx., p. 363).

Also, some problems arose with the State facilities where the classes

were being held and the State began implementing last-minute

changes to course materials, leaving inadequate preparation time for

Compuware trainers.

Both Compuware and Peat Marwick were aware of these

concerns, and were working to fashion remedies. (Tr., pp. 140-

141; Apx., pp. 234-235) In fact, in regard to the long working

hours of trainers, the position of Master Trainer was created to

assist in administration, more trainers were hired and a procedure

was put in place by which trainers were allowed to leave the facility

and return home when they did not have classes to teach. (Tr., pp.

222-223, 320-321; Apx., pp. 294-295, 354-355) The paperwork

required to be filled out by Compuware employees was significantly

reduced and weekly management meetings were called in order to

more quickly provide course materials to Compuware trainers, and

to allow more time for the trainers to learn the materials. (Tr., p.

329; Apx., p. 362) In regard to problems with the State facilities,

the State of Michigan, for the most part, controlled the amount of

space available for training and also controlled the climate and

equipment which was available at the training site. (Tr., pp. 140-

141; Apx., pp. 234-235) However, those concerns were addressed

as well. The air conditioning system did not malfunction after July,

(Tr., p. 223; Apx., p. 295) and additional classroom space was also

provided.

Prior to being hired by Compuware, Schillinger was made

be oD tals Bb LE aE whe PRR pt a ATS oe elle aS

5 Sab etd ey la ROMAN i tS fons My EE 8 Reet Bota? Aig sie

aware of the conditions at the training site, including the fact that

he would be required to work long hours. (Tr., p. 97; Apx., p.

205) However, Schillinger testified that once he began working as

a trainer for Compuware he was dissatisfied with the long hours,

the stress and last minute revisions to course materials. (Tr., p. 32;

Apx., p. 170) Schillinger also testified that some of his concerns

were also shared by other Compuware trainers, and that he had

conversations with some of the other trainers in regard to their

common concerns. (Tr., pp. 31-32; Apx., pp. 169-170)

On August 18, 1994, Schillinger left the work site (at

Project M.A.I.N.) early, complaining of a headache. (Tr., p. 34;

Apx., p. 172) On the morning of August 19, 1994, Schillinger was

approached by a Master Trainer, Michael Wilhite, who inquired as

to whether Schillinger was feeling better. (Tr., p. 34; Apx., p.

172) Wilhite approached Schillinger in a classroom at the work

site, prior to the commencement of classes that day. Also present

in the room was Hugh Kessler, another Compuware applications

trainer and "training partner" of Schillinger. (Tr., p. 33; Apx., p.

171) Apparently upset by an incorrect rumor that a female

coworker had suffered a miscarriage due to overwork, Schillinger

began shouting at Mr. Wilhite about working conditions and

became very loud and disruptive. (Tr., p. 197; Apx., p. 279)

Another Compuware trainer, Roger Dymond, heard Schillinger’s

raised voice in another classroom, and entered the classroom to

request that Schillinger keep his voice down. (Tr., pp. 303-304;

Apx., p. 344-345)

Schillinger testified that in the course of his confrontation

with Mr. Wilhite, he informed Mr. Wilhite that he had a "union"

background and was effective at "organizing people around issues."

(Tr., p. 37; Apx., p. 175) In response to this, Mr. Wilhite asked

Schillinger whether he was attempting to form a union, to which

Schillinger replied that he was not. (Tr., p. 199; Apx., p. 281)

Schillinger stated to Mr. Wilhite that he planned to attend a meeting

with State of Michigan officials scheduled for later that day, at

which he intended to bring up work-related concerns and

complaints. (Tr., pp. 108-109; Apx., pp. 210-211) Mr. Wilhite

replied by reiterating to Schillinger that it was improper for

Compuware employees to address work-related concerns directly to

the State of Michigan, and that the purpose of the previously-

scheduled meeting with the State was to congratulate Compuware

trainers on a job well-done, and not to voice employee concerns.°

(Tr., p. 110; Apx., p. 212) Schillinger replied, "We'll see." (Tr.,

p. 203; Apx., p. 285)

At the conclusion of the confrontation, Mr. Wilhite left the

room and placed a telephone call to John Hess, Compuware

Account Manager for Project M.A.I.N. (Tr., p. 203; Apx., p. 285)

Unable to reach Mr. Hess, Mr. Wilhite spoke to J. Michael Mutter,

the Peat Marwick executive in charge of training for Project

M.A.I.N. (Tr., p. 204; Apx., p. 286) Mr. Wilhite told Mr. Mutter

that Schillinger had threatened to approach the State of Michigan

with work-related concerns at the meeting scheduled for later that

day. (Tr., p. 205; Apx., p. 287) Mr. Wilhite never related to Mr.

Mutter Schillinger's denial that he was forming a union nor any

al'egation that Schillinger was acting as a representative of other

Compuware employees. (Tr., p. 219; Apx., p. 291)

After speaking with Mr. Mutter, Mr. Wilhite then

successfully contacted John Hess, the Compuware account manager

in charge of Project M.A.I.N. (Tr., p. 206; Apx., p. 288) Mr.

Wilhite related to Mr. Hess that Schillinger had threatened to

approach the State of Michigan with work-related concerns. (Tr.,

p. 207; Apx., p. 289) Mr. Hess indicated that he would like to

speak with Schillinger by telephone, but, as Schillinger testified,

Schillinger refused to do so, and again emphasized to Mr. Wilhite

that he was not attempting to form a union. (Tr., pp. 43-44; Apx.,

. The meeting later that day was a brief visit from Doug Johnson

who was the State of Michigan Training Manager for Project M.A.I.N.

Mr. Johnson was aware that the trainers had encountered some problems on

the job. He decided to have a meeting with the trainers to compliment them

on the fine job that they were doing under the circumstances and to advise that

any necessary changes would continue to be made. (Tr., pp. 144, lines 2-25

and 145, lines 1-5; Apx., pp. 238-239)

ee a eeeeeeeeeeeeeeeeerrerrerrrrerererrerovxoOoOooooorrrrr

pp. 181-182)

Since Mr. Hess was concerned with Schillinger’s threat to

violate an established work rule and his refusal to speak with him

on the telephone, Mr. Hess drove to the work site in Lansing, and

asked to have lunch with Schillinger. (Tr., p. 114; Apx., p. 216)

When Mi. Hess arrived at the work site, he was approached by

Hugh Kessler, who told Mr. Hess that he did not want to be

associated with Schillinger. (Tr., pp. 169-170; Apx., pp. 260-261)

Mr. Hess, Mr. Kessler and Schillinger thereafter proceeded to a

lunch with several other Compuware trainers. (Tr., p. 54; Apx.,

p. 192) At lunch, several trainers, including Schillinger,

communicated work-related concerns to Mr. Hess. (Tr., pp. 55-56;

Apx., pp. 193-194)

Prior to lunch, Mr. Hess spoke by telephone with Michael

Mutter of Peat Marwick, who stated that he had rearranged

Schillinger's work schedule so that Schillinger would not be

required to teach classes that afternoon, and directed Mr. Hess to

send Schillinger home from the job site. (Tr., 270; Apx., p. 319)

Therefore, after lunch, Mr. Hess informed Schillinger that he could

take the rest of the afternoon off and go home and get some rest.

(Tr., p. 270; Apx., p. 319)

Mr. Hess then proceeded to a meeting with Mr. Mutter of

Peat Marwick, at which Mr. Mutter requested that the Schillinger

be removed from Project M.A.I.N. (Tr., pp. 273-274; Apx., pp.

322-323) Both Mr. Mutter and Mr. Hess testified that the decision

made by Peat Marwick to remove Schillinger was made solely

because Schillinger had threatened to approach the State with work-

related concerns, in violation of a work rule. (Tr., pp. 148-149,

273-274; Apx., pp. 242-243, 322-323) The testimony is

uncontradicted that, at the time the decision was made by Peat

Marwick to remove the charging party from Project M.A.I.N.,

Schillinger's prior union background, and neither person was aware

of any allegation that he was attempting to form a union or was

representing the interests of other Compuware employees. (Tr., pp.

149, 219, 274-275; Apx., pp. 243, 291, 323-324)

Since Schillinger was hired as only a temporary employee,

Compuware had no obligation to retain him in its employ

subsequent to Peat Marwick requiring that he be removed from

Project M.A.I.N. (See Letter of Acknowledgment of Temporary

Employee Status admitted as R2; Apx., pp. 145-146) Mr. Hess,

nonetheless, considered placing Schillinger at another client site, but

decided not to retain Schillinger as a Compuware employee, due to

the fact that Schillinger did not possess the technical skills necessary

to be placed at a different client site. (Tr., pp. 277-279; Apx., pp.

326-328) That testimony is uncontroverted.

The NLRB brought this action on behalf of Schillinger

against Compuware, only, alleging a violation of Sections 8 (a)(1)

and (3) of the National Labor Relations Act. (Tr., p. 5; Apx., p.

156)

PROCEDURAL HISTORY

This matter came before Administrative Law Judge,

James L. Rose, in a formal proceeding commencing June 12, 1995,

and concluding June 13, 1995. Judge Rose (hereinafter “ALJ”)

issued his five-page opinion on September 7, 1995, and found that

Section 8(a)(3) of the Act had not been violated, and recommended

this allegation of the Complaint be “ismissed. However, the ALJ

concluded that Compuware violated Section 8(a)(1) of the Act’, and

recommended certain remedies.

Compuware filed exceptions to the decision of the ALJ on

October 6, 1995, and on December 18, 1995, the National Labor

‘ Section 8(a)(1) of the NLRA, 29 U.S.C. §158(a)(1)

provides that employers commit an unfair labor practice if they “interfere

with, restrain, or coerce employees in the exercise of the rights guaranteed in

section 157.” Section 157 guarantees employees the right, inter alia, “to

engage in . . . concerted activities for the purpose of collective bargaining or

other mutual aid or protection.” 29 U.S.C. §157.

peat Lehi tite wie ew.

Relations Board affirmed, without analysis or opinion, th2

September 7, 1995 decision of ALJ Rose.’ Compuware’s Motion

for Reconsideration of December 18, 1995 Decision and Order was

timely filed thereafter. On August 27, 1996, the N.L.R.B. entered

its Order Denying Motion (for Reconsideration).

On September 13, 1996, Compuware filed its Petition for

Review of National Labor Relations Board’s December 18, 1995

Decision and Order and August 27, 1996 Order Denying Motion

for Reconsideration in the Court of Appeals for the Sixth Circuit.

In its Petition for Review, Compuware raised the following issues:

(1) whether the ALJ erred in finding that Schillinger had engaged

in concerted activity; (2) whether the ALJ erred when he failed to

address the issue of employer knowledge as an element required to

be proven by the Board; (3) whether the ALJ erred in his

conclusion that Peat Marwick was not entitled to promulgate a work

rule which prohibits employee communication of work-related

concerns with Peat Marwick’s client; (4) whether the ALJ erred

when he failed to balance Peat Marwick’s work rule against any

incidental effect on employee rights under the Act; (5) whether the

ALJ erred in finding that an ongoing labor dispute is not required

to justify employees approaching third parties with work-related

complaints, and in finding that an ongoing labor dispute was present

in this case: (6) whether the ALJ erred in failing to address the issue

of whether Schillinger’s discharge was motivated by or substantially

based upon his participation in alleged protected activity; and (7)

whether the ALJ erred in holding Compuware responsible for the

actions of Peat Marwick.

On January 28, 1998, a panel of the Sixth Circuit,

consisting of Sixth Circuit Judges Merritt and Moore and Eighth

8 Since the NLRB failed to outline any decisions

reasoning, but merely adopted the September 7, 1995 five-page opinion of

Judge Rose, the analysis of the NLRB is assumed to be identical to that in the

September 7, 1995 opinion. Therefore, all analyses following by Compuware

refers to the September 7, 1995 ALJ opinion, but applies to the decision of the

Board as well.

Circuit Judge Bright, issued its decision in this matter. In the

January 28, 1998 decision, the Court concluded that the charging

party, Laurence Schillinger, had engaged in concerted activity,

despite the fact that no co-worker had authorized Schillinger to

represent him, because Schillinger’s actions were “made on behalf

of other employees”, (134 F.3d at p. 1288) because Schillinger’s

activity was “related to group action”, (134 F.3d at p. 1288) and

because Schillinger “acted for the purpose of furthering group

goals.” (134 F.3d at p. 1288)

The Sixth Circuit rejected Compuware’s argument that the

ALJ erred in his conclusion that Peat Marwick was not entitled to

promulgate a work rule which prohibits employee communication

of work-related concerns with Peat Marwick’s client. The Sixth

Circuit stated that, “. . . an employer may not enforce a rule which

improperly interferes with its employees’ statutory right to engage

in concerted activity.” 134 F.3d at p. 1290. The Sixth Circuit

failed to acknowledge that an employer can enact and enforce a rule

that properly interferes with its employee’s statutory right to engage

in concerted activity and, thus, failed to balance Peat Marwick’s

work rule against any incidental effect on employee rights under the

Act.

The Sixth Circuit, just as the ALJ, failed to address the

issue of whether the charging party’s discharge was motivated by

or substantially based upon his participation in alleged concerted

protected activity.

On February 11, 1998, Compuware timely filed its Petition

for Rehearing and Suggestion for Rehearing En Banc Pursuant to

Rules 35(b) and 40(a) under the Federal Rules of Appellate

Procedure. That Petition was denied on March 13, 1998. On

March 20, 1998, Compuware filed its Petition for Stay of Mandate

Pending Petition for Writ of Certiorari in the Sixth Circuit. As of

this writing, that Petition for Stay of Mandate remains pending.

mani Db enh

Ne EE SE iT Be ee ©

REASONS FOR GRANTING THE WRIT

This case involves exceptionally important matters which

require this Court's intervention. In this case, the Sixth Circuit

concluded that the charging party had engaged in concerted activity,

despite the fact that no co-worker had authorized the charging party

to represent him, because the charging party’s actions were “made

on behalf of other employees, because the charging party’s activity

was “related to group action”, and because the charging party

“acted for the purpose of furthering group goals.” Thus, the Sixth

Circuit has held that the mere existence of common or shared

concerns makes an employee’s actions directed at those common

concerns “concerted activity” despite the fact that the employee

lacks the requisite actual authority to speak for any co-employee.

The fact that common concerns had previously been discussed with

other employees does not render an employee’s actions concerted.

That is the holding of Manimark Corp. v. N.L.R.B., 7 F.3d 547

(C.A. 6 1993). The failure of the Sixth Circuit in this case to

follow Sixth Circuit precedent warrants the grant of this petition for

writ of certiorari.

The same holds true, i.e., that this Petition for Writ of

Certiorari should be granted, because of the Sixth Circuit’s

determination that an employer can never institute a work rule that

restricts employees’ ability to communicate with third parties. This

Court and the Sixth Circuit have held that an employer is not

precluded from promulgating rules and regulations properly

designed to protect legitimate employer interests even where such

rules and regulations might have the ancillary of discouraging

participation in protected activities. N.L.R.B. v. Fleetwood Trailer

Co., Inc., 389 U.S. 375, 378 (1967); Union Carbide Corp. v.

N.L.R.B., 714 F.2d 657, 664 (C.A. 6 1983). Whether or not such

a rule properly or improperly interferes with employees’ rights to

engage in protected activity can only be determined by a balancing

between the employer’s business justifications in the invasion of

employee rights in light of the Act and its policies. Jeannette Corp.

v. N.L.R.B., 532 F.2d 1916 (C.A. 3 1976); Texas Instruments, Inc.

v. N.L.R.B., 637 F.2d 822 (C.A. 1 1981). Here, the

Administrative Law Judge, the National Labor Relations Board, and

the Sixth Circuit failed to conduct the required balancing exercise.

Lastly, certiorari should be granted because an essential

element of a claim of violation of the Act was not established. The

Administrative Law Judge, the National Labor Relations Board, and

the Sixth Circuit erred in failing to address the issue of whether the

charging party’s discharge was motivated by or substantially based

upon his participation in alleged protected concerted activity. Had

that issue been addressed, the necessary and only conclusion would

have been that the evidence was insufficient as a matter of law to

establish this element. A determination that the act has been

violated, which lacks sufficient factual support with respect to an

essential element of the claimed violation, cannot be permitted to

stand.

ARGUMENT I

The Administrative Law Judge, the National

Labor Relations Board and the Sixth Circuit

erred in finding that the charging party had

engaged in concerted activity.

A prima facie claim for violation of Section 8 (a)(1) of the

National Labor Relations Act requires a showing that the

complaining employee has been involved in "concerted activity."

Manimark Corp. v. N.L.R.B., 7 F.3d 547, 550 (C.A. 6 1993). The

Sixth Circuit has interpreted concerted activity not to include mere

"theoretical" aid or benefit to other employees. Manimark Corp.,

supra. The activity in question must be truly concerted. It is only

concerted when the individual who engages in the activity does so

with the authorization of the other employees who he purports to

represent.

In Manimark, supra, the Sixth Circuit declined to follow the

decision of the N.L.R.B. which found that the employee in that case

had engaged in concerted activity. During the charging party's

employment, Manimark employees had several work-related

concerns. According to the Manimark Court:

“(the charging party] and other drivers frequently

; discussed problems they had with the maintenance

of their trucks. . . [a]Jnother topic of conversation

was poor communication between drivers and their

supervisors. . . [the charging party] also suggested

that he and other drivers were upset over habitual

tardiness of the supplier of Hostess products, since

this delayed stocking their trucks prior to leaving

work for the day.” /d.

wk vaeonmaitaects nieag ill

On one occasion, the charging party was called into the

office of the company's Vice President on an unrelated matter, at

which time he "informed [the Vice President] that he and other

drivers had complaints about inadequate maintenance of the trucks

they drove, poor communications with supervisors, and the late

arrival of the Hostess supplier." /d., at 549.

On another occasion, the charging party was speaking with

two co-employees about payment for unused sick days, when an

assistant to the company controller entered. /d. After the assistant

had explained the policy, the charging party stated that he disagreed

with the policy and would address the Vice President of the

Corporation in that regard. /d. Three days later, the charging

party was discharged. /d.

In finding that the charging party had not engaged in

concerted activity, the Sixth Circuit stated that the fact that the

charging party had discussed work-related concerns with co-

employees on several previous occasions and that the complaints of

the charging party would aid or benefit fellow employees was not

sufficient to support a finding of concerted activity. /d., at 550.

The Court stated, "Instead, the Board must prove that the employee

in question was ‘acting on behalf of, or as a representative of, other

employees rather than acting for the benefit of other employees only

in a theoretical sense.'" Jd. (Quoting, ARO, Inc. v. N.L.R.B., 596

F.2d 713, 717 (C.A. 6 1979)). The Court went on to state that the

employee "must be actually, rather than impliedly, representing the

views of other employees." /d. (Quoting, Jim Causley Pontiac v.

j 13

N.L.R.B., 620 F.2d 122, 126 n. 7 (C.A. 6 1980)).

“This Court has never held that an employee's action in

merely repeating the jointly held concerns of other employees,

standing alone, suffices for a finding of concerted action.”

Manimark Corp., supra, at 551. Rather, the Sixth Circuit has

rejected the notion that an employee’s complaint was concerted

because it was of common concern to other employees. “An

inquiry into the concerted nature of conduct should not focus solely

upon the group nature of the complaints.” Manimark Corp., supra,

at 551. There must be evidence that the employee was actually,

rather than constructively or impliedly, representing the views of

other employees. Manimark Corp., supra, at 550. Then, and only

then, can it be said that the employee was acting on behalf of other

employees. Then, and only then, is the activity concerted.

Simply put, no matter how much or how strongly one

“intends” to or is “willing” to act on behalf of others, that alone is

insufficient. There must be proof? that the employee in question was

acting with the authorization of other employees. Manimark Corp.,

supra. The former without the latter is legally insufficient to establish

that an individual’s actions were concerted. The former is all that

exists in this case.

The testimony in the present case demonstrates that, while the

concerns of Schillinger may have been shared by other coworkers,

there is no evidence that he was "representing" the interests of the other

employees. While Schillinger testified that he frequently spoke with

other employees about common, work-related concerns, the N.L.R.B.

presented no absolutely evidence to indicate that Schillinger ever

consulted or spoke with fellow employees regarding representing

common concerns to Compuware management.

° The Board had the burden of proving that Schillinger had the

authorization of others to act on their behalf. Compuware did not have the

burden to disprove it.

PE eR =

The testimony given by other Compuware employees shows

Schillinger's coworkers expressly disavowed being associated with him.

For example, Schillinger's “training partner", Hugh Kessler, testified

that he expressly told John Hess, the account manager, that he did not

want to be associated with Schillinger and that he did not "need anyone

else taking care of me." (Tr., pp. 169-170; Apx., pp. 260-261)

Master Trainer Mike Wilhite testified that five to six other trainers

approached him and told him that they did not want to be associated

with Schillinger. (Tr., pp. 227-228; Apx., pp. 296-297) In fact, every

Compuware employee that testified stated that they did not want

Schillinger to represent their concerns to management, and that they

had not spoken to any other Compuware employee who wanted

Schillinger to represent their concerns to management.

The ALJ acknowledged the testimony that Schillinger did not

have the support of other employees, as follows:

“Employee Hugh Kessler testified that he told Hess

privately that he agreed with many of Schillinger's

concerns, but he did not agree with Schillinger's

approach. Employee Roger Diamond [sic], called

as a witness by the Respondent, testified that

Schillinger told Wilhite he intended to speak for all

employees at the "Heads Up" meeting. Diamond

{sic] further testified that he had not authorized

Schillinger to do so. And Wilhite testified that five

other trainers told him they did not want to be

associated with Schillinger.” (Opinion p. 4, lines

21-26; Apx., pp. 31)'°

10 Nevertheless, the ALJ disregarded that testimony by concluding

that “such testimony does not prove that Schillinger did not have the

authorization of others . . . ." (Opinion, p 4, lines 26-27; Apx., pp. 31) This

is an error which ignores the proper allocation of the burden of proof. The

ALJ has it backwards. His conclusion ignores the proper allocation of the

burden of proof. It was the Board’s burden to establish that Schillinger was

engaged in concerted activity and not Compuware’s burden to show that he

was not. At no time did the Board meet its evidentiary burden by presenting

In the January 28, 1998 decision, the Sixth Circuit

concluded that the charging party, Laurence Schillinger

(Schillinger), had engaged in concerted activity, despite the fact that

no co-worker had authorized Schillinger to represent him, because

Schillinger’s actions were “made on behalf of other employees”,

because Schillinger’s activity was “related to group action”, and

because Schillinger “acted for the purpose of furthering group

goals.” Therein the foundational error in the Sixth Circuit’s

analysis lies. The actions of Schillinger can, in no manner, be

characterized as “concerted” because he never had any other

employee's authorization to speak for him.

Just because one employee shares common concerns with

others and that employee makes the unilateral decision to discuss

those concerns with management (or in this case with management’s

client), does not mean that the employee has the requisite actual

authority to do so. The fact that common concerns had previously

been discussed with other employees does not render an employee’s

actions concerted. That is the holding of Manimark Corp. v.

N.L.R.B. supra.

Concerted action cannot be imputed from the object of the

action. Prill v. N.L.R.B., 835 F.2d 1481, 1483 (C.A. D.C. 1987)

cert. denied 487 U.S. 1205; 108 S. Ct. 2847; 101 L. Ed. 2d 884

(1988). Actual, rather than implied or constructive, authority to

represent the views of other employees is an absolute prerequisite

to a finding of concerted action. Manimark, supra, at 550. In fact,

the N.L.R.B. admitted in this case, as it must, that in order for

activity to be concerted, it must be engaged in with the authority of —

other employees. Sixth Circuit brief for the National Labor

Relations Board, pp. 15-16. The Sixth Circuit, although ostensibly

acknowledging the actual authorization requirement 134 F.3d at p.

1288, completely dispensed with it. The Sixth Circuit found that

Schillinger had engaged in concerted activity despite the utter lack

evidence which demonstrated that Schillinger had the authorization of others.

In fact, the only evidence presented was to the contrary.

90 Saeed RE CO yee

~ oS i A oN ty

~ et ee ee ee ee I i Ee

of proof that he had any authority from any other employee to

represent his interests.

The Sixth Circuit’s characterization of Compuware’s

argument demonstrates the core error in the Sixth Circuit’s analysis.

The Sixth Circuit stated that “. . . Compuware argues that the

Board did not show Schillinger was acting for the group.” 134

F.3d at p. 1289. Based on that characterization of Compuware’s

argument, the Sixth Circuit stated that, “. . . the relevant question

is whether the employee acted with the purpose of furthering group

goals.” That is not Compuware’s argument and that is not the

relevant question. An employee may act all day long with the

purpose of furthering group goals. Yet, if he does not have the

actual authority of other employees to do so on their behalves, his

action is not concerted.

The difference is subtle but significant in that it is outcome

determinative. If Schillinger was acting for the group or on behalf

of other employees, solely in the sense that his unauthorized acts

were directed at common concerns, then that is not concerted. But,

if Schillinger was acting for the group or on behalf of other

employees, in the sense that another employee had authorized

Schillinger to speak for him, then that is concerted activity. The

former is al] that was proven in this case. There is no evidence of

the latter.

The sum and substance of the Board’s argument (which was

accepted by the Sixth Circuit) on the issue of whether Schillinger

was engaged in concerted activity was set forth in its Summary of

Argument. The Board stated that:

“Schillinger’s proposed action was concerted

because he intended to act on behalf of other

employees who on numerous occasions raised their

grievances to the Company.” (Underlining

supplied.)

Sixth Circuit brief for the National Labor Relations Board, p. 12.

The statement of the position itself demonstrates the lack of merit

in the argument and the foundational error committed by the

Administrative Law Judge, by the Board and by the Sixth Circuit in

this case.

The ALJ, the Board, and the Sixth Circuit, seem to believe

that authorization, and thus the concerted nature of the activity, can

be established by one employee’s unilateral intent to represent

others and his statement of a willingness to do so. This is not the

law nor should it be. By analogy, many people want to represent

others. They are known as politicians. Their mere desire or intent

to represent others, however, is not sufficient. The only legally

recognized representatives are those who obtain authorization to do

so in the form of votes. Without affirmative authorizations, a

person, even one who intends to represent others, acts alone.

Mr. Schillinger’s intent to represent other employees and his

expression of a willingness to do so, without any evidence of their

acquiescence in him so doing (and there is no such evidence in this

record - - in fact, the evidence is to the contrary), proves nothing

more than that Mr. Schillinger acted alone.

The fact that a charging party had discussed work related

concerns with co-employees on several previous occasions and the

fact that the complaints of the charging party would aid or benefit

fellow employees is not sufficient to support a finding of concerted

activity. That was the result reached by Judges’ Kennedy, Norris,

and Krupansky in Manimark Corp., and that is the result which the

Sixth Circuit in this case should have reached. Certiorari is

necessary to resolve the conflict between Manimark Corp., supra,

and the decision in the instant case with the result being a statement

by this Court that the rule of Manimark Corp., supra, is correct and

that the decision in the instant case is simply wrong.

At bottom, the position advanced by Compuware and

supported by Manimark, supra, concerning the absolute necessity

of actual authorization is the only position which makes logical

sense. One can sit around and discuss common concerns or

problems with another employee until the end of the day. One can

a eR Tr ae a ee Tey 2

SLE ON aU a ae rer ete ee

Sh RS GT AA RAR PRS ed ie ow MALES aba

ie BAC hv a oa Oe

even sit there while that employee discusses them with management.

One can even attend a meeting at which that other employee has

indicated he intends to raise those concerns. That does not mean

that one wants him to speak on his behalf to management. Until

proven otherwise, the assumption must be that one wants to say his

own peace on his own behalf and not have his right to do so

usurped by a “volunteer” whose invitation has not been accepted.

Compuware contends that this Court, on certiorari, should

forthrightly acknowledge actual authority as a precondition to

concerted activity and acknowledge that actual authority must be

proven.

Compuware further contends that the Sixth Circuit's

decision cannot and should not be sustained by overlooking the

Sixth Circuit’s erroneous analysis of what actual authority means

and by concluding that, as a matter of fact, actual authority was

established. To be sure, the Sixth Circuit in this case stated that,

“. . . some of the other trainers had previously commented that

because Schillinger, who had been a union steward at a former job,

‘knows this stuff, he should talk to management people.’” (134

F.3d at p. 1290) That is insufficient evidence to support a

determination that Schillinger was acting on behalf of any other

employee when he made the threat to approach the representatives

of the State of Michigan. The above-quoted factual statement by

the Sixth Circuit is taken from p. 5 of the N.L.R.B. brief where the

N.L.R.B., stated that:

“On a couple of occasions when employees

discussed their grievances, some _ trainers

commented that because Schillinger, who had been

a union steward at a former job, ‘knows this stuff,

he should talk to management people.’”

The Board cited to 14 pages of the joint appendix to ostensibly

support that statement. Nothing Schillinger said supports it.

Nothing Wilhite (the Compuware master trainer) said supports it.

All that is in the record is a statement of Kessler (Schillinger’s

partner) that he thought he heard a couple of “unidentified” trainers

say that they wanted Schillinger to present their concerns to

Compuware management.

This is not sufficient evidence of authorization because (1)

the speakers were not identified, (2) no person testified that he or

she said it, (3) Compuware offered the testimony of two trainers to

testify explicitly that they did not authorize Schillinger to represent

them (and the Board offered no one to say that they did) and (4) in

any event, at very most, those unidentified persons wanted

Schillinger to speak to Compuware management, not Peat Marwick

and, most significantly, not the State of Michigan. On those

undisputed facts, it is not reasonable to conclude that any person

actually authorized Schillinger to represent him or her with respect

to voicing his or her concerns directly to the representatives of the

State of Michigan.

In summary, while employees may share a concern relating

to a term or condition of employment, they must still do something

to authorize an individual to represent their interests in order for his

actions to be concerted. Any other rule would effectively eliminate

the authorization requirement and the law would be that an

individual’s unilateral activities with respect to common concerns

would amount to concerted action. That is simply not the law.

ARGUMENT II

The Administrative Law Judge, the National

Labor Relations Board and the Sixth Circuit

erred in the conclusion that Peat Marwick was

absolutely precluded from promulgating a work

rule which prohibited employee communications

of work-related concerns to Peat Marwick’s

client and, for that reason, in failing to balance

the legitimate interests protected by the work

rule against any incidental effect on employee

rights under the Act.

The ALJ, the National Labor Relations Board, and the Sixth

Circuit erred in the conclusion that as a matter of law, an employer

dh har Enel teks) Se tan ie sc A

at + es pine

may not adopt a work rule or policy prohibiting its employees from

complaining to the employer's customers regarding working

conditions. The crux of the decision is that such a rule is, itself, a

violation of Section 7 and, therefore, termination of an employee

for violating or threatening to violate such a rule is improper. The

conclusion is not tenable.

The position taken by the Board, and accepted by the Sixth

Circuit, is that, as a matter of law, an employer may not adopt a

work rule or policy prohibiting employees from complaining to the

employer's customers regarding work conditions. The position

taken by Compuware is that a rule prohibiting employees from

raising complaints with an employer’s customers is valid when it

furthers the legitimate and substantial interests of the employer.

The fact that an activity is concerted" does not necessarily

mean that an employee can engage in the activity with impunity.

N.L.R.B. v. City Disposal Sys., Inc., 465 U.S. 822, 837; 104 S. Ct.

1505, 1514; 79 L. Ed. 2d 839 (1984); Aroostook County Regional

Ophthalmology Center v. N.L.R.B., 81 F.3d 209, 214 (DC Cir. 1996)

citing V.L.R.B. v. Mike Yurosek & Son, Inc., 53 F.3d 261, 266 (C.A.

9 1995). “The Act, of course, does not prevent an employer from

making and enforcing reasonable rules covering the conduct of

employees on company time.” Republic Aviation Corp. v. N.L.R.B.,

324 U.S. 793, 803 n. 10; 65 S. Ct. 982; 89 L. Ed. 1372 (1945)

The Sixth Circuit has held that an employer is not precluded

from promulgating rules and regulations properly designed to protect

legitimate employer interests even where such rules and regulations

might have the ancillary effect of discouraging participation in

protected activities. Union Carbide Corp. v. N.L.R.B., 714 F.2d 657,

664 (C. A. 6 1983).

os This argument assumes that the Court disagrees with

Compuware’s preceding argument concerning the solitary nature of Mr.

Schillinger’s activities.

It is well-established that an employer may adopt a work rule

or policy that inhibits protected activity as long as the employer

demonstrates "legitimate and substantial business justifications” for the

rule. See e.g., N.L.R.B. v. Fleetwood Trailer Co. Inc., 389 U.S. 375,

378 (1967); N.L.R.B. v. Jemco, Inc., 465 F.2d 1148, 1152, n7(C.A.

6 1972); Jeannette Corp. v. N.L.R.B., supra, at p. 1918.

It is clear that a rule prohibiting employees from raising

complaints or concerns with an employer's customers furthers the

legitimate and substantial interests of the employer. N.L.R.B. v.

Redtop, Inc., 455 F.2d 721 (C.A. 8 1992) is directly on point.

Redtop, Inc., was in the business of providing janitorial

services to hospitals. The services in each hospital were provided by

separate shifts. The shifts elected advisory committees to represent the

employees in disputes with management. The advisory committee for

the night shift at one hospital raised a variety of complaints regarding

the management's misuse of funds, firing of employees and lack of

promotion. N.L.R.B. v. Redtop, Inc., supra, at pp. 722-723.

One of the imbers of the advisory committee, a

Mr. Svoboda, threatened in a letter to his employer that he would take

these problems to the hospital administration if management did not

resolve them. N.L.R.B. v. Redtop, Inc., supra, at p. 727. He

threatened to do this even though:

".., the committee members had been previously

informed that they should submit grievances to the

local manager and if the grievances could not be

resolved on that level, take them to... Redtop's

regional director."

N.L.R.B. v. Redtop, Inc., supra, at p. 727.

The court, in upholding the employee's discharge,

recognized that a threat to involve a ciient in such disputes

constituted improper interference with the employer's commercial

interest:

"It is a natural inference that if the hospital is

involved in these disputes, it would become

dissatisfied with the company." Id.

Moreover, because the employee made such a threat in

direct disregard of the known chain of command, the threat could

not “constitute a did for public sympathy or support such as

peaceful picketing, but was clearly designed to hit the employer

where it would hurt, by interfering with its business relations with

its customers." /d. Rather, “the threat. . . to take the problems to

the hospital administration constituted an act of disloyalty to the

employer's business interest." /d. The court found, therefore, that

the discharge of Svoboda was justified and denied enforcement of

an order of the Board requiring his reinstatement.

It is clear then, under N.L.R.B. v. Redtop, Inc., supra, that

when an employee disregards the chain of command for presenting

complaints regarding working conditions and threatens to complain

to the employer's customers, discharge is justified. Such a threat

is clearly disloyal and improperly threatens to interfere with the

employer's legitimate business interest. It is equally clear under

N.L.R.B. v. Redtop, Inc., supra, that an employer may adopt a

rule” or policy establishing a chain of command or procedure for

presenting complaints that would prohibit such disloyalty and improper

conduct.

' In this case, Michael Mutter, the Peat Marwick executive in

charge of the training portion of Project M.A.I.N., testified that the reason for

the work rule prohibiting Compuware employees from approaching the State

of Michigan was to preserve the relationship between Peat Marwick and the

State of Michigan, to avoid embarrassment and to maintain an orderly chain

of command and system for addressing employee complaints. (Tr., p. 146;

Apx., p. 240) This is a legitimate work rule, intended to protect the bona fide

business interests of Peat Marwick. Indeed, the work rule was promulgated

and in place prior to the hiring of Schillinger and Mr. Mutter testified that the

work rule is instituted for every subcontractor hired by Peat Marwick. (Tr.,

pp. 142-143; Apx., pp. 236-237)

The case at bar is virtually identical to N.L.R.B. v. Redtop,

Inc., supra. Schillinger threatened to bring up his complaints with the

client’s client, the State of Michigan. He did this despite being aware

of the chain of command which he was to follow in order to address

work related concerns or complaints.

Indeed, the employee's actions in the case at bar posed a

greater threat than those in N.L.R.B. v. Redtop, Inc., supra. Here, the

employee's threat posed a serious risk to three relationships: the

relationship between Compuware and Peat Marwick, the relationship

between Compuware and the State of Michigan, and the relationship

between Peat Marwick and the State of Michigan. Obviously, Peat

Marwick would be dissatisfied with Compuware if Compuware

employees involved the State of Michigan in such a dispute. Similarly,

the State of Michigan would be dissatisfied with both Peat Marwick and

Compuware if it became involved in such a dispute. In light of the

holding in to N.L.R.B. v. Redtop, Inc., supra, the discharge of an

employee who makes such threats is entirely justified.

Compuware’s position is further supported by the court's

decision in N.L.R.B. v. Knuth Bros., supra. In N.L.R.B. v. Knuth

Bros., supra, the employer was a wholesale printer of business forms.

It did almost all of its work on a subcontract basis; and it received all

of its business from dealers and had no contact with the ultimate end

user of the forms. N.L.R.B. v. Knuth Bros., supra, at 951.

The respondent discharged one of its empioyees who, in the

course of a union organizational campaign, contacted an end user and

inquired why that end user was having its forms printed at respondent's

non-union place of business. N.L.R.B. v. Knuth Bros., supra, at 952.

The court recognized that, as in the case at bar, this conduct of the

employee posed a threat to a three-way business relationship; Le., the

relationship between the employer, the dealer and the end user.

N.L.R.B. v. Knuth Bros., supra, at 959.

The court held, therefore, that contacting the end user and

informing the end user that printing work was being done for it by a

non-organized company posed a significant threat to the employer's

business interest even though the employee may have been engaged in

an organizational campaign:

"In reviewing the information, Popovich acted in

reckless disregard of his employer's business

interest. Respondent had the right to expect its

employees to use greater care in using information

acquired in the course of their employment.

Failure to use such care was an act of disloyalty to

respondent. His avowed purpose of aiding the

organizational campaign is insufficient to protect

him from the effects of his misconduct and

constitute a cause for discharge." N.L.R.B. v.

Knuth Bros., supra, at 956.

It should be noted that the employer in N.L.R.B. v. Knuth

j Bros., supra, argued that it had a rule prohibiting such disclosures

7 and contact with end users. However, the court recognized that the

: employee's conduct was such an obvious violation of the employer's

interest that an explicit rule prohibiting such conduct was not

necessary: 7

"Since Popovich was a pressman, he never had any

excuse whatever for meddling in his employer's

dealings with its customers, and an explicit

prohibition would not be necessary. Popovich's

conduct was clearly far beyond the scope of duties

for which he was paid, and thus he must be held to

have been aware that he was meddling in his

employer's business affair without authorization.

Therefore, respondent was legally entitled to treat

him just as it would any other employee who so

seriously disrupts his employer's business."

N.L.R.B. v. Knuth Bros., supra, at 956 (quoting

from N.L.R.B. dissenting statement).

pital yew

Thus, under N.L.R.B. v. Knuth Bros., supra, not only is the

employer entitled to discharge an employee who disrupts or

threatens to disrupt an employer's business relationships, an

employer may discharge the employee for such conduct even in the

absence of a rule. Furthermore, discharge is appropriate even if the

employee's communication was made in connection with protected

activity.

It is clear then that well-established law recognizes that an

employer may adopt policies or rules to regulate the manner in

which Section 7 rights are exercised. It is clear that a policy or rule

establishing a chain of command prohibiting employees from taking

their grievances to their employer's customers are entirely

legitimate. It is also clear under the law that discharging an

employee for violating such a rule is justified. Indeed, it is well

recognized that an employee who threatens an employer's

relationship with its customers can be discharged even if such

conduct is associated with the exercise of Section 7 rights.

Therefore, the ALJ’s, the National Labor Relations Board’s,

and the Sixth Circuit’s conclusion that a company may never adopt

a rule establishing a chain of command which precludes employees

from involving customers in grievances and the conclusion that an

employer may not discharge an employee who threatens to involve

customers in grievances are contrary to well-established law.

This conclusion is further bolstered when one acknowledges

that the Act does not give employees carte blanche in choosing the

method of presentation, or in their choice of time and place, for

making such employment-related complaints. N.L.R.B. v. Truck

Drivers Oil Filling Station and Platform Workers' Union, 630 F.2d

505, 508 (C.A. 7 1980). In N.L.R.B. v. Truck Drivers Oil Filling

Station, supra, the Seventh Circuit found that employees who failed

to follow established procedures in seeking wage increases lost the

protection of the Act when making complaints. The court stated

that the employees’ failure to follow established procedures in airing

their complaints formed "a reasonable basis for withholding the

normal protection afforded" to such activities. /d.

The ALJ attempted to distinguish N.L.R.B. v. Truck Drivers

esi ai a ig

er eer

PRE pe aT aaa aie ET ee ae

i sal

Si AI SR ea SAT Shae hs 7 ROE Mes Bea Al

Oil Filling Station, supra, on the basis that the employee's

disregarding of proper procedures "was not the basis for denial of

enforcement." (Opinion, p. 6, lines 12-13; Apx., p. 33) This is not

the case. While the employees in N.L.R.B. v. Truck Drivers Oil

Filling Station, supra, had engaged in other improper activities,

their violation of established work rules clearly played a part in

their dismissal. The court stated:

“They [the employees] were fully informed of the

established procedure to follow in seeking wage

increases. . . . Yet they elected to disregard

established procedures and to present wage

complaints at a meeting attended by stewards who

are not employed by the Union, to the potential

embarrassment of the Union and its leader who was

conducting the meeting.” Id., at 508.

The court recognized that tne Act is not violated when an

employer limits the forums for presenting work-related grievances.

In this case, testimony revealed that Schillinger had up to seven (7)

other avenues in which to air his work-related complaints. (Tr., p

220; Apx., p. 292) In fact, he testified that he was aware of these

other avenues in which to voice his work-related concerns. (Tr.,

pp. 25, 87-88, 103-104; Apx., pp. 163, 203-204, 208-209) Yet, he

failed to avail himself of any of those avenues. For example, he

testified that he never raised work-related concerns at weekly

"heads up" meetings with Compuware and Peat Marwick

management, a forum created specifically for addressing and

resolving employee concerns. (Tr., p. 98; Apx., p. 206)

It is clear that the work rule promulgated by Peat Marwick

which prevented Compuware employees from approaching the State

of Michigan directly was a legitimate work rule, and that Peat

Marwick was entitled to promulgate such a rule even if it had the

ancillary effect of limiting one forum in which the charging party

could voice his work-related concerns. Since it is clear, pursuant

to the authority of N.L.R.B. v. Truck Drivers Oil Filling Station,

supra, that employees do not have carte blanche in choosing the

method of presentation, the time of presentation or the place for

making such complaints, limiting only one forum for employees'

complaints, while providing seven (7) other methods for airing

employees’ complaints clearly does not violate the Act.

Thus, the question which was presented in this case (and,

for that matter, every similar case involving a work rule restricting

employee complaints and legitimate and substantial interests of the

employer), and which was never decided at any stage in this

litigation, is whether the work rule in question struck a proper

balance between employee rights and the legitimate concerns of the

employer."

If an employer work rule is proven to infringe on the protected

rights of an employee, the employer must demonstrate “Jegitimate and

substantial business justification for his conduct." Jeannette Corp v.

N.L.R.B., supra; Texas Instruments, Inc. v. N.L.R.B., 637 F.2d 822

(C.A. 1 1981); Handicabs, Inc. v N.L.R.B., 95 F.3d 681, 684-685

(C.A. 8 1996). In this case, the testimony of Michael Mutter, cited

previously, supplies a legitimate business justification for the work rule

restricting employees from approaching Peat Marwick's client with

work-related concerns.

Once a legitimate business justification is supplied by the

employer, the Board must "strike the proper balance between the

asserted business justifications and the invasion of employee rights in

light of the Act and its policy." /d. (citation omitted). The ALJ, the

National Labor Relations Board, and the Sixth Circuit erroneously

failed to conduct the required balancing exercise. Had any of them

engaged in this proper analysis, it is clear that the employer's interest

in promulgating this work rule outweighs the incidental and minor

infringement on the employee's right to air work-related concerns in a

'S “The reach of § 7 [of the N.L.R.A.] has posed difficult questions

involving the balancing of an employee's right to engage in concerted activities

against the employer’s right to maintain order and control... .” 1 The

Developing Labor Law, 144 (Morris et. al., Ed., Second Edition 1983).

Pao at aati Sha at aS, SA PR LE NM A agi

ee eee

particular forum. Since employees had available no less than seven (7)

other avenues for airing work-related complaints, none of which were

utilized by Schillinger, it is clear that the limiting of only one forum in

which the employee may air complaints does not outweigh the

legitimate work rule of Peat Marwick. This minor infringement on the

employee's right to air work-related complaints, while still leaving

available equally-effective, alternate methods of airing those

grievances, does not outweigh the employer's right to promulgate a rule

designed to maintain order and efficiency in the work place.

ARGUMENT III

The Administrative Law Judge, the National

Labor Relations Board, and the Sixth Circuit

erred in failing to address the issue of employer

knowledge of the asserted concerted nature of

the charging party’s activity as an element

required to be proven by the Board.

The third element of a prima facie claim of violation of the

N.L.R.A. requires that the employer have knowledge that an

employee is engaging in protected, concerted activity. Ajax Paving

Industries, Inc. v. N.L.R.B., 713 F.2d 1214, 1218 (C.A. 6 1983).

The rule is stated as follows:

“In order to find that the employer has committed

an unfair labor practice by taking adverse action

against an employee who engages in protected,

concerted activity, the Board must determine that

the employer knew of the concerted nature of the

employees’ conduct.” /d., at 1219.

In this case, the ALJ, the National Labor Relations Board,

and the Sixth Circuit failed to even address the requirement of

employer knowledge. That element (which is simply one of cause

in fact) was not and cannot be satisfied. The evidence is

uncontroverted that neither Peat Marwick nor Compuware had

knowledge that Schillinger claimed to be representing the interests

of other employees at the time the decision was made to remove

Schillinger from the Project M.A.LN. work site. (Tr., pp. 149,

219, 274-275; Apx., pp. 243, 291, 323-324) Master Trainer Mike

Wilhite, the trainer involved in the confrontation with Schillinger on

August 19, testified that he told neither Michael Mutter of Peat

Marwick nor John Hess of Compuware that Schillinger had a

"union background" or that he was supposedly representing or

speaking on behalf of other Compuware employees. (Tr., p. 219;

Apx., p. 291)

In fact, the only knowledge in the possession of John Hess

at the time the decision was made to remove Schillinger from the

work site was that other employees did not want to be associated

with Schillinger, based upon statements made to Hess by employee

Hugh Kessler. (Tr., p. 266; Apx., p. 315) The only person who

had knowledge of Schillinger's "union background" or any alleged

"concerted" activity was Master Trainer Mike Wilhite, and it is

undisputed that Mr. Wilhite is not a supervisor, and played no role

in the termination of Schillinger, so his knowledge or lack thereof

is irrelevant. (Tr., p. 229; Apx., p. 298)

The N.L.R.B. presented no evidence that the management

of either Peat Marwick or Compuware had any knowledge

concerning Schillinger’s alleged “union background" or any

"concerted" activity. To the contrary, the only information supplied

to management was that other employees did not want to be

associated with Schillinger. As such, the Boarc led to sustain this

element of its prima facie claim, and the coimpiaint should have

been dismissed.

CONCLUSION

Based upon the reasons stated above and the record as a

whole, a writ of certiorari should issue to review the decision of the

United States Court of Appeals for the Sixth Circuit.

/s/

ERNEST R. BAZZANA

Counsel of Record

PLUNKETT & COONEY, P.C.

243 West Congress, Suite 800

Detroit, MI 48226-3260

(313) 965-3900

Attorneys for Petitioner

Dated: April 17th, 1998

hs Send Ble ae

Se ee ae ae

APPENDIX

Ah ate MDs at

era art ae oe

RBS AR Bt tS ILE ben BiB 7 decid

APPENDIX A

JD-135-95 Detroit, MI

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD DIVISION OF JUDGES

Case 7-CA-36731

COMPUWARE CORPORATION

and

LAURENCE SCHILLINGER, An Ind ‘vidual

Dennis Boren. Esq., of Detroit, Michigan, for the General

Counsel.

Anthony J. Rusciano of Detroit, Michigan, and

Daniel M. Sak. Esq., of Farmington, Hills,

Michigan, for the Respondent.

DECISION

Statement of the Case

James L. Rose, Administrative Law Judge: This matter

was tried before me on June 12 and 13, 1995, at Detroit,

Michigan, upon the General Counsel's complaint which

JD-135-95

Detroit, MI

alleged that on August 22, 1994,’ the Respondent discharged

Laurence Schillinger in violation of Sections 8(a)(1) and (3)

of the National Labor Relations Act, as amended, 29 U.S.C.

§ 151 et seq.

The Respondent admitted the discharge of Schillinger

on August 22, but denied that it had thereby engaged in an

violation of the Act. The Respondent affirmatively contends

that the activity for which Schillinger was discharged was not

concerted or protected by Section 7 of the Act.

Upon the record as a whole, including my observation

of the witnesses, briefs and arguments of counsel, I hereby

make the following findings of fact, conclusions of law and

recommended order:

I. JURISDICTION

The Respondent is a Michigan corporation engaged in

providing computer software and services to various

companies, during the course of which business it annually

derives gross revenues in excess of $1,000,000 and annually

provides services to customers outside the State of Michigan

in excess of $50,000. The Respondent admits, and I find, that

it is an employer engaged in interstate commerce within the

meaning of Sections 2(2). 2(6) and 2(7) of the Act.

II. THE ALLEGED UNFAIR LABOR PRACTICES

' All dates are in 1994 unless otherwise indicated.

JD-135-95

Detroit, MI

A. The Facts in Brief.

There is no significant dispute concerning the material

facts. KPMG Peat Marwick had a contract with the State of

Michigan for an extensive upgrading of the State's computer

system. Peat Marwich in turn contracted with the Respondent

to furnish support personnel to train State employees on he

new system. The Respondent then hired about 38 employees

on a temporary basis to work as trainers. (When the Peat

Marwich project was completed in November, about one-half

of the temporary employees were given other jobs with the

Respondent.)

The Charging Party, Laurence Schillinger, was

interviewed and by letter of July 6, was offered a temporary

trainer position. His job, as that of all the trainers, was to

learn specific courses, become certified to teach them, and do

so. While the hiring letter stated that he was to work

approximately 40 hours a week, it happened that the trainers

were required to put in much longer hours - usually 57 or so

each week.

In addition to the long hours plus a substantial

commute for most trainers, Schillinger testified to other

employment concerns, such as inadequate preparation time.

and the failure of the Respondent to pay overtime premiums.

Schillinger testified that almost from the beginning of

his employment he discussed these problems with other

employees. And on the morning of August 19, Schillinger had

a discussion about these matters with Master Trainer Michael

Wilhite (whom the parties stipulated was an employee and not

JD-135-95

Detroit, MI

a supervisor within the meaning of Section 2(11) of the Act),

at which employees Hugh Kessler and Roger Diamond were

present. During this discussion. Schillinger became agitated

and told Wilhite that if nothing satisfactory was done. he

would express these concerns at a meeting scheduled that

afternoon at which there would be representatives of the State

as well as Peat Marwich.

Wilhite told Schillinger that it would be improper for

him to bring up these problems at the meeting with State

representatives, to which, Wilhite testified, Schillinger said,

"We'll see." Wilhite called John Hess, the Respondent's

account manager for this project to report Schillinger's intent.

Hess' was not available and Wilhite left a voice mail message;

but he also called James Michael Mutter, who at the time was

the Peat Marwich on site team leader for the project.

Mutter was concerned that Schillinger would in fact

raise these issues with the client, and absent assurance he

would not, Mutter wanted him taken off the project. Mutter

and Hess testified that Peat Marwick retained the right to

require the Respondent to withdraw any employee from the

project.

Hess returned Wilhite's call, learned of the situation

and came to the project. He talked with Schillinger and

Wilhite and at Schillinger's invitation, joined several trainers

for lunch to talk about various work related problems. Shortly

thereafter, Hess talked to Mutter, who stated he was so

concerned that Schillinger might by-pass the chain of

command that he was considering canceling the meeting.

Mutter asked if Hess could give him assurances that

JD-135-95

Detroit, MI

Schillinger would not bring up these problems at the meeting,

and when Hess could not, Mutter said he would have to find

out what to do. However, it appears, though somewhat

unclear, that Mutter first told Hess that Schillinger should not

go to the meeting and told him to give Schillinger the rest of

the day off. Then Mutter checked with his superiors and they

concluded that Schillinger should be replaced, and this order

came later.

Saturday Hess called Schillinger and asked him to

report to Hess's office on Monday, August 22. Schillinger did

so and was informed by Hess that he was being terminated

from the project at the direction of Peat Marwick. Since

Schillinger was a temporary employee for that particular

project, and, according to Hess, deemed insufficiently skilled

for other jobs, he was terminated from employment with the

Respondent.

B. Analysis and Concluding Findings.

During Schillinger's August 19 discussion with

Wilhite, Schillinger noted that he was an experienced union

steward and that the employees could use his expertise in

resolving the employment problems. Wilhite asked if he was

trying to organize a union and Schillinger said no. Wilhite did

not relay this particular statement of Schillinger's to Hess or

Mutter, although later in the afternoon, without input from

Wilhite, Hess asked if Schillinger was there to organize and

Wilhite said "Absolutely not" (using Schillinger's words from

the morning). Other than these two statements, there is no

evidence that any activity on behalf of any labor organization

played a role in the Respondent's decision to terminate

JD-135-95

Detroit, MI

Schillinger. I do not believe that Schillinger's statement to

Wilhite and Hess's question are sufficient to establish a

violation of Section 8(a)(3). Therefore, I conclude that a

Section 8(a)(3) violation has not been proven by a

preponderance of the credible evidence and I shall recommend

that this allegation of the complaint be dismissed.

However, I further conclude that Schillinger had been

engaged in concerted activity protected by Section 7 of the

Act, and he was terminated because of a perception that he

might continue to do so by expressing concerns of employees

at a meeting to be attended by representatives of the ‘State of

Michigan. I conclude that Schillinger was not terminated so

much for what he did as what Mutter and Hess believed he

might do if he continued as an employee.

The Respondent does not dispute that the subject

matter discussed by Schillinger with Wilhite and Hess, and

which he indicated he would present at the meeting involved

issues Of mutual aid and protection within the meaning of

Section 7. However, the Respondent contends that Schillinger

was, and would have been, acting alone, or in any event had

other reasonable avenues of presenting these concerns without

airing them to the Peat Marwick client.

One of the seven avenues the Respondent argues was

available to Schillinger was the weekly "Heads Up" meeting.

According to Wilhite it was such a meeting which was to be

held on August 19; however, since representatives of

Michigan we-re planning to attend in order to tell the

Respondent's employees what a great job they were doing, to

air grievances then would have been inappropriate.

A6é

JD-135-95

Detroit, MI

Citing Manimark Corp. v. NLRB, 7 F.3d 547 (6th Cir,

1993), the Respondent argues that in order to find an

employee has engaged in concerted activity, it must be shown

that he did more than merely repeat to management jointly

held concerns of other employees. In Manimark. the employee

never told other employees what he was going to do or that he

had contacted management. Thus the Court found that he was

acting in concert with other employees only in a "theoretical

sense" and such was insufficient to support a violation. Such

is not the situation here.

The evidence here establishes that the concerns of

employees were being presented to Hess in concert.

Schillinger invited Hess to lunch with employees in order to

discuss their problems. Hess accepted and heard each

employee make a statement. Schillinger opened and closed the

discussion.

Employee Hugh Kessler testified that he told Hess

privately that he agreed with many of Schillinger's concerns,

but he did not agree with Schillinger's approach. Employee

Roger Diamond, called as a witness by the Respondent;

testified that Schillinger told WILHITE he intended to speak

for all employees at the "Heads Up" meeting. Diamond

further testified that he had not authorized Schillinger to do

so. And Wilhite testified that five other trainers told him they

did not wish to be associated with Schillinger.” But, this does

> This was unobjected to hearsay and is therefore

considered for the truth of the fact assertion. Passaic Daily News

v. NLRB. 736 F.2d 1543, 1554 n. 15 (D.C. Cir. 1984).

JD-135-95

Detroit, MI

not prove that. Schillinger did not have the authorization of

others or, more importantly, would not have been engaged in

the furtherance of concerted action had he attended and

spoken at the afternoon meeting.

Notwithstanding evidence that Schillinger did not have

the total support of other trainers, I conclude that his activity

was concerted within the meaning of the Act. Employees had

discussed these matters and following Schillinger talking with

WILHITE on the morning of August 19, Hess met with

Schillinger and others at noon during which their concerns

were discussed.

Clearly the activity of Schillinger comes within the

broad definition of "concerted activity" accepted by the Board

in Meyers/Industries, Inc., 281 NLRB 882 (1986) (Meyers If)

which "encompasses those circumstances where individual

employees seek to initiate or induce or to prepare for group

action .... "281 NLRB at 887. The fact that an employee may

act alone during some phase of concerted presentation of

employee grievances does not mean he is thereby outside the

protection of the Act. See also Mushroom Transportation Co.

v. NLRB. 330 F.2d 683 (3d Cir. 1964).

Unlike Manimark and other cases cited by the

Respondent, the discharge of Schillinger was a preemptive

strike. It was unknown to Mutter, and I find of no importance

to him, whether Schillinger's intention to speak at the

afternoon meeting was to be in aid of concerted activity.

Mutter told Hess to remove Schillinger because Schillinger

said he would bring up employee grievances at the meeting.

Mutter's order had nothing to do with whether Schillinger

JD-135-95

Detroit, MI

intended to act alone or in concert. But the Respondent argues

that Schillinger was (or would have been) acting alone:

therefore, discharging him was not a violation of the Act. I

disagree, and conclude that if Schillinger had been allowed to

attend the meeting and had he spoken, it is more probable

than not that he would have been engaged in concerted

activity.

Citing NLRB v. Electrical Workers Local 1229

(Jefferson Standard), 346 U.S. 464 (1953), the Respondent

argues there are limits to concerted activity which is

protected. In Jefferson Standard, employees had directed

handbills to customers of the TV station which, in essence,

Suggested that the TV station was not giving its customers

good service. For this the employees were discharged. The

Respondent analogizes the customers in Jefferson Standard

with the client of Peat Marwick in this matter, mile that

analogy may be reasonable, the message to be delivered here

is fundamentally different from that in Jefferson Standard.

The message in Jefferson Standard had nothing to do with the

wages, hours, or other terms and conditions of employment

of the employees. Here Schillinger complained about, and

intended to bring up, matters directly relating to the

employment of all the trainers - long hours, inadequate

preparation time, failure to pay overtime and the like.

The question is whether an employer can make (or as

is the case here, acquiesce in) a rule that restricts employees’

ability to engage in concerted activity by prohibiting

communication with third parties. I conclude not. The Board

has repeatedly held that employees may, with the protection

of Section 7, communicate with third parties about matters

JD-135-95

Detroit, MI

relating to an ongoing labor dispute. See, Sierra Publishing

Company d/b/a The Sacramento Union, 291 NLRB 540

(1988) and cases cited therein, particularly including Emarco,

Inc.. 284 NLRB 832 (1987) (Chairman Dotson dissenting)

and Cordura Publications Inc., 280 NLRB 230 (1986)

(Chairman Dotson dissenting) where the employees wrote to

the respondent's parent company. The caveat in these cases is

that the communication not be so disloyal or maliciously false

to remove the employees from the protection of the Act.

The complaints here were not false. Hess agreed that

there were problems along the lines complained of and that

steps were being taken to correct them. There is no argument

that Schillinger had made disloyal or deliberately false

statements, or that there was a reasonable fear he would do so

when talking to representatives of the State. The totality of the

Respondent's argument is that Peat Marwick had a rule

making it inappropriate for the Respondent's employees to

take their employment concerns to “the client" and since

Schillinger would not give sufficient assurance he would not

do so, Peat Marwick asked that he be replaced. This resulted

in Schillinger's discharge and was violative of the Act.

The Respondent contends the Peat Marwick rule was

designed to protect its legitimate interests; thus, even if

enforcement of the rule ‘might have the ancillary effect of

discouraging participation unprotected activities," it is

nonetheless lawful, citing Union Carbide Corp. v. NLRB, 714

F.2d 657 (6th Cir. 1983). Union Carbide is inapposite. There,

in dicta, the Court approved the Board's decision that an

employer has a basic right to restrict the use of its property.

Union Carbide does not speak to the matter of an employer

Al0

poe’

SRE baited Ae ela VaR

JD-135-95

Detroit, MI

making rules restricting the presentation of grievances, nor

was such an issue for decision.

The Respondent further relies on NLRB v. Truck

Drivers, Oil Drivers etc. Local 705, 630 F.2d 505 (7th Cir.

1980) denying enforcement of a Board order that two of the

Union's business agents were unlawfully discharged because

they pressed for a wage increase. The employees had first,

and inappropriately, asked for the wage increase at a

steward's meeting. They knew, and were told, such was not

the proper time or place for such a demand, nevertheless, no

action was then taken against them for having done so. They

were told they would get a wage increase when they deserved

one.

The Court did say: ‘That employees are protected

while presenting wage complaints does not give them carte

blanche in choosing the method of presentation, or in their

choice of time and place for making those complaints."

However, this was not the basis for the denial of enforcement.

The Court found that in addition to asking for a wage increase

at the steward's meeting, which as long term business agents

they knew was an inappropriate forum, they misused the CB

radio and passed out flyers at a civic luncheon to the

embarrassment of the Union. Further, the executive board had

recommended their discharge for poor performance a few

months preceding these events, but as with presenting a wage

demand at the stewards meeting, they had been given a

"second chance." The Court said, 'There must be room in the

law for a right of an employer somewhere, some time, at

some state, to free itself of continuing, unproductive, internal,

and improper harassment." 630 F.2d at 509.

All

JD-135-95

Detroit, MI

This holding does not mean that an employer can make

rules restricting employees from engaging in protected,

concerted activity and then require their discharge on the

anticipation that the rule might be broken.

Finally, the Respondent argues that in order to be

protected by the Act, concerted activity must arise out of a

labor dispute, again citing Jefferson Standard, and there was

no such dispute here within the meaning of Section 2(9) of the

Act. I reject this contention. First, neither Jefferson Standard

nor any other case of which I am aware so hold and second,

here there was a controversy between employees and the

Respondent concerning some conditions of employment,

which would certainly be a matter will within Section 2(9).

IV. REMEDY

Having found that the Respondent has engaged in

certain unfair labor practices, conclude that it must be ordered

to cease and desist such activity and to take certain affirmative

action designed to effectuate the policies of the Act.

Although Schillinger was hired as a temporary

employee for the Peat Marwick project only, it is uncertain

whether in fact his employment would have ended in

November when the project was completed. About one-half

of the others so hired continue to work for the Respondent on

other projects. Therefore, whether his employment would

have ended in November or continued on are equally likely.

I do not accept as dispositive Hess's brief and self-serving

statement that Schillinger lacked the skills for other jobs. In

such matters, typically in the construction industry, the

Al2

2 satin

Sis Cte Be Waite Mae

JD-135-95

Detroit, MI

traditional remedy is ordered, leaving to the compliance stage

the issue of whether in fact the individual discriminated

against would have been terminated at the completion of the

job for which he was hired. Dean General Contractors, 285

NLRB 573 (1987) (Chairman Dotson dissenting).

I shall recommend that Laurence Schillinger be offered

reinstatement to his former or substantially equivalent position

of employment and be made whole for any Joss of earnings

and other benefits he may have suffered, computed on a

quarterly basis from date of discharge to date of proper offer

of reinstatement, less any net interim earnings, F.W. -

Woolworth Co., 90 NLRB 289 (1950). plus interest as

computed in New Horizons for the Retarded. 283 NLRB 1173

(1987).

On the foregoing findings of fact, conclusions of law

and the entire record, I hereby issue the following

recommended:°

ORDER

The Respondent, Compuware Corporation, _ its

officers, agents, successors, and assigns, shall

1. Cease and desist from:

> If no exceptions are filed as provided by Sec. 102.46 of

the Board's Rules and Regulations, the findings, conclusions, and

recommended Order shall, as provided in Sec. 102.48 of the Rules,

be adopted by the Board and all objections to them shall be deemed

waived for all purposes.

Al3

JD-135-95

Detroit, MI

(a) Discharging, or otherwise discriminating against,

employees because they engage in concerted activity protected

by Section 7 of the Act.

(b) In any like or related manner interfering with,

restraining or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

2. Take the following affirmative action deemed

necessary to effectuate the policies of the Act:

(a) Offer Laurence Schillinger immediate and full

reinstatement to his former job or, if that job no longer exists,

to a substantially equivalent position, without prejudice to his

seniority 0-r any other rights or privileges previously enjoyed,

and make him whole for any loss of earnings and other

benefits suffered as a result of the discrimination against him

in the manner set forth in the Remedy section of the decision.

(b) Remove from its files any reference to the unlawful

discharge and notify Schillinger in writing that this has been

done and that the discharge will not be used against him in

any way.

Board or its agents for examination and copying, all payroll

records, social security payment records, time cards,

personnel records and reports, and all other records necessary

to analyze the amount of backpay due under the terms of this

Order.

(d) Post at its Farmington Hills, Michigan, facility

Al4

a) ac ia ati ag nas =

JD-135-95

Detroit, MI

copies of the attached notice marked "Appendix. * Copies of

the notice, on forms provided by the Regional Director for

Region 7, after being signed by the Respondent's authorized

representative, shall be posted by the Respondent immediately

upon receipt and maintained for 60 consecutive days in

conspicuous places including all places where notices to

employees are customarily posted. Reasonable steps shall be

taken by the Respondent to ensure that the notices are not

altered, defaced, or covered by any other material.

(f) Notify the Regional Director in writing within 20

days from the date of this Order what steps the Respondent

has taken to comply.

IT IS FURTHER ORDERED that the complaint is

dismissed insofar as it alleges violations of the Act not

specifically found.

Dated, Washington, D.C.

September 7, 1995

/s/

James L. Rose

* If this Order is enforced by a Judgment of the United

States Court of Appeals, the words in the notice reading "POSTED

BY ORDER OF THE NATIONAL LABOR RELATIONS

BOARD" shall read "POSTED PURSUANT TO A JUDGMENT

OF THE UNITED STATES COURT OF APPEALS ENFORCING

AN ORDER OF THE NATIONAL LABOR RELATIONS

BOARD."

Al5

JD-135-95

Detroit, MI

Administrative Law Judge

Al6

Pra ee ae

i Ni AlN SG a AE GON} Si ah AR ile

ete ial

JD-135-95

Detroit, MI

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered us

to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of

their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT discharge, or otherwise discriminate against

employees because they engage in concerted activity protected

by Section 7 of the Act.

WE WILL offer Laurence Schillinger immediate and full

reinstatement to his former job, or if that job no longer exists,

to a substantially equivalent position, without prejudice to his

seniority or other rights and privileges previously enjoyed and

make him whole for any loss of earnings and other benefits

suffered as a result of the discrimination against him.

Al7

JD-135-95

Detroit, MI

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered with any other material. Any questions

concerning this notice or compliance with its provisions may

be directed to the Board's Office, Room 300, 477 Michigan

Avenue, Patrick v. McNamara Federal Building, Detroit,

Michigan, 48226. Telephone 313-226-2090.

Al8

> 3

b»

JD-135-95

Detroit, MI

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered

us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of

their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT discharge, or otherwise discriminate against

employees because they engage in concerted activity protected

by Section 7 of the Act.

WE WILL offer Laurence Schillinger immediate and full

reinstatement to his former job, or if that job no longer exists,

to a substantially equivalent position, without prejudice to his

seniority or other rights and privileges previously enjoyed and

make him whole for any loss of earnings and other benefits

suffered as a result of the discrimination against him.

Al9

JD-135-95

Detroit, MI

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered with any other material. Any questions

concerning this notice or compliance with its provisions may

be directed to the Board's Office, Room 300, 477 Michigan

Avenue, Patrick V. McNamara Federal Building, Detroit,

Michigan, 48226. Telephone 313-226-2090.

A20

io PANE Gee pCR RS RES

ha a a ag a i Z gee?

7 eas oe nee

APPENDIX B

NOTICE: This opinion is subject to formal revision

before a publication in the Board volumes of

NLRB decisions. Readers are requested to

notify the Executive Secretary, National Labor

Relations Board, Washington, D.C. 20570, of

any typographical or other formal errors so

that corrections can be included in the bound

volumes.

Compuware Corporation and Laurence Schillinger.

Case 7-CA-36731

December 18, 1995

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS BROWNING

AND TRUESDALE

On September 7, 1995, Administrative Law Judge

James L. Rose issued the attached decision. The respondent

filed exceptions and a brief in support.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and record in

light of the exceptions and briefs and has decided to affirm the

judge’s rulings, findings, and conclusions, and to adopt the

A21

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

recommended Order, as modified. '

ORDER

The National Labor Relations Board adopts the

recommended Order of the administrative law judge and

orders that the Respondent, Compuware Corporation, Detroit,

Michigan, its officers, agents, successors, and assigns, shall

take the action set forth in the Order, except the attached

notice is substituted for that of the administrative law judge.

Dated, Washington, D.C. December 18, 1995

William B. Gould IV, Chairman

Margaret A. Browning, Member

John C. Truesdale, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX

' We have modified the notice to employees to conform

to language of the recommended Order.

A22

Pil aT asin ANS cen aM

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

NOTICE TO EMPLOYEES POSTED BY ORDER OF

THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered us

to post and abide by this notice.

WE WILL NOT discharge or otherwise discriminate

against employees because they engage in concerted activity

protected by Section 7 of the Act.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce you in the exercise of the

rights guaranteed you by Section 7 of the Act.

WE WILL offer Laurence Schillinger immediate and

full reinstatement to his former job or, if that job no longer

exists, to a substantially equivalent position, without prejudice

to his seniority or any other rights or privileges previously

enjoyed and WE WILL make him whole for any loss of

earnings and other benefits resulting from his discharge, less

any net interim earnings, plus interest.

WE WILL notify him that we have removed from our

files any reference to his discharge and that the discharge will

not be used against him in any way.

COMPUWARE CORPORATION

Dennis Boren, Esq., for the General Counsel.

Anthony J. Rusciano of Detroit, Michigan, and Daniel M.

A23

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

Sak, Esq., of Farmington, Hills, Michigan, for the

Respondent.

DECISION

STATEMENT OF THE CASE

JAMES L. ROSE, Administrative Law Judge. This matter

was tried before me on June 12 and 13, 1995, at Detroit,

Michigan, upon the General Counsel’s complaint that alleged

that on August 22, 1994,’ the RESPONDENT discharged

Laurence Schillinger in violation of Section 8(a)(1) and (3) of

the National Labor Relations Act.

The Respondent admitted the discharge of Schillinger

on August 22, but denied that it had thereby engaged in an

violation of the Act. The Respondent affirmatively contends

that the activity for which Schillinger was discharged was not

concerted or protected by Section 7 of the Act.

Upon the record as a whole, including my observation

of the witnesses, briefs and arguments of counsel, I hereby

make the following

FINDINGS OF FACT

I. JURISDICTION

The Respondent is a Michigan corporation engaged in

providing computer software and services to various

| All dates are in 1994 unless otherwise indicated.

A24

ie tha a A OT PT TI Shae

i j

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

companies, during the course of which business it annually

derives gross revenues in excess of $1 million and annually

provides services to customers outside the State of Michigan

in excess of $50,000. The RESPONDENT admits, and I

find, that it is an employer engaged in interstate commerce

within the meaning of Section 2(2), (6), and 2(7) of the Act.

II. THE ALLEGED UNFAIR LABOR PRACTICES

A. The Fact in Brief

There is no significant dispute concerning the material

facts. KPMG Peat Marwick had a contract with the State of

Michigan for an extensive upgrading of the State’s computer

system. Peat Marwick in turn contracted with the Respondent

to furnish support personne! to train State employees on the

new system. The RESPONDENT then hired about 38

employees on a temporary basis to work as trainers. (When

the Peat Marwick project was completed in November, about

one-half of the temporary employees were given other jobs

with the Respondent.)

The Charging Party, Laurence Schillinger, was

interviewed and by letter of July 6 was offered a temporary

trainer position. His job, as that of all the trainers, was to

learn specific courses, become certified to teach them, and do

so. While the hiring letter stated that he was to work

approximately 40 hours a week, it happened that the trainers

were required to put in much longer hours—usually 57 or so

each week.

In addition to the long hours plus a substantial

A25

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

commute for most trainers, Schillinger testified to other

employment concerns, such as inadequate preparation time,

and the failure of the Respondent to pay overtime premiums.

Schillinger testified that almost from the beginning of

his employment he discussed these problems with other

employees. And on the morning of August 19, Schillinger

had a discussion about these matters with Master Trainer

Michael Wilhite (whom the parties stipulated was an

employee and not a supervisor within the meaning of Section

2(11) of the Act), at which employees Hugh Kessler and

Roger Diamond were present. During this discussion,

Schillinger became agitated and told Wilhite that if nothing

satisfactory was done, he would express these concerns at a

meeting scheduled that afternoon at which there would be

representatives of the State as well as Peat Marwick.

Wilhite told Schillinger that it would be improper for

him to bring up these problems at the meeting with State

representatives, to which, Wilhite testified, Schillinger said,

"We'll see." Wilhite called John Hess, the Respondent’s

account manager for this project to report Schillinger’s intent.

Hess was not available and Wilhite left a voice mail message;

but he also called James Michael Mutter, who at the time was

the Peat Marwick on site team leader for the project.

Mutter was concerned that Schillinger would in fact

raise these issues with the client, and absent assurance he

would not, Mutter wanted him taken off the project.

Hess returned Wilhite’s call, learned of the situation

and came to the project. He talked with Schillinger and

A26

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

Wilhite and at Schillinger’s invitation, joined several trainers

for lunch to talk about various work related problems.

Shortly thereafter, Hess talked to Mutter, who stated he was

so concerned that Schillinger might bypass the chain of

command that he was considering canceling the meeting.

Mutter asked if Hess could give him assurances that

Schillinger would not bring up these problems at the meeting,

and when Hess could not, Mutter said he would have to find

out what to do. It appears, however, though somewhat

unclear, that Mutter first told Hess that Schillinger should not

go to the meeting and told him to give Schillinger the rest of

the day off. Then Mutter checked with his superiors and they

concluded that Schillinger should be replaced, and this order

came later.

Saturday Hess called Schillinger and asked him to

report to Hess’s office on Monday, August 22. Schillinger

did so and was informed by Hess that he was being terminated

from the project at the direction of Peat Marwick. Since

Schillinger was a temporary employee for that particular

project and, according to Hess, deemed insufficiently skilled

for other jobs, he was terminated from employment with the

RESPONDENT.

B. Analysis and Concluding Findings

During Schillinger’s August 19 discussion with

Wilhite, Schillinger noted that he was an experienced union

steward and that the employees could use his expertise in

resolving the employment problems. Wilhite asked if he was

trying to organize a union and Schillinger said no. Wilhite

did not relay this particular statement of Schillinger’s to Hess

A27

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

or Mutter, although later in the afternoon, without input from

Wilhite, Hess asked if Schillinger was there to organize and

Wilhite said, "Absolutely not" (using Schillinger’s words

from the morning). Other than these two statements, there is

no evidence that any activity on behalf of any labor

organization played a role in the Respondent’s decision to

terminate Schillinger. I do not believe that Schillinger’s

statement to Wilhite and Hess’s question are sufficient to

establish a violation of Section 8(a)(3). Therefore, I conclude

that an 8(a)(3) violation has not been proven by a

preponderance of the credible evidence and I shall recommend

that this allegation of the complaint be dismissed.

I further conclude, however, that Schillinger had been

engaged in concerted activity protected by Section 7 of the

Act, and he was terminated because of a perception that he

might continue to do so by expressing concerns of employees

at a meeting to be attended by representatives of the State of

Michigan. I conclude that Schillinger was not terminated so

much for what he did as what Mutter and Hess believed he

might do if he continued as an employee.

The Respondent does not dispute that the subject

matter discussed by Schillinger with Wilhite and Hess, and

which he indicated he would present at the meeting involved

issues of mutual aid and protection within the meaning of

Section 7. The Respondent contends, however, that

Schillinger was, and would have been, acting alone, or in any

event had other reasonable avenues of presenting these

concerns without airing them to the Peat Marwick client.

One of the seven avenues the RESPONDENT argues

A28

are aren er etme ten aL HS i) na

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

was available to Schillinger was the weekly "Heads Up"

meeting. According to Wilhite it was such a meeting which

was to be held on August 19; however, since representatives

of Michigan were planning to attend in order to tell the

Respondent’s employees what a great job they were doing, to

air grievances then would have been inappropriate.

Citing Manimark Corp. v. NLRB, 7 F.3d 547 (6th Cir.

1993), the RESPONDENT argues that in order to find an

employee has engaged in concerted activity, it must be shown

that he did more than merely repeat to management jointly

held concerns of other employees. In Manimark, the

employee never told other employees what he was going to do

or that he had contacted management. Thus the court found

that he was acting in concert with other employees only in a

“theoretical sense" and such was insufficient to support a

violation. Such is not the situation here.

The evidence here establishes that the concerns of

employees were being presented to Hess in concert.

Schillinger invited Hess to lunch with employees in order to

discuss their problems. Hess accepted and heard each

employee make a statement Schillinger opened and closed

the discussion.

Employee Hugh Kessler testified that he told Hess

privately that he agreed with many of Schillinger’s concerns,

but he did not agree with Schillinger’s approach. Employee

Roger Diamond, called as a witness by the Respondent,

testified that Schillinger told Wilhite he intended to speak for

all employees at the "Heads Up" meeting. Diamond further

testified that he had not authorized Schillinger to do so. And

A29

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

Wilhite testified that five other trainers told him they did not

wish to be associated with Schillinger.* But, this does not

prove that Schillinger did not have the authorization of others

or, more importantly, would not have been engaged in the

furtherance of concerted action he had attended and spoken at

the afternoon meeting.

Notwithstanding evidence that Schillinger did not have

the total support of other trainers, I conclude that his activity

was concerted within the meaning of the Act. Employees had

discussed these matters and following Schillinger talking with

Wilhite on the morning of August 19, Hess met with

Schillinger and others at noon during which their concerns

were discussed.

Clearly the activity of Schillinger comes within the

broad definition of "concerted" activity" accepted by the

Board in Meyers Industries, 281 NLRB 882 (1986)(Meyers I/)

that "encompasses those circumstances where individual

employees seek to initiate or induce or to prepare for group

action. 281 NLRB at 887. The fact that an employee may act

alone during some phase of concerted presentation of

employee grievances does not mean he is thereby outside the

protection of the Act. See also Mushroom Transportation Co.

v. NLRB, 330 F.2d 683 (3d Cir. 1964).

Unlike Manimark and other cases cited by the

2 This was unobjected to hearsay and is therefore

considered for the truth of the fact assertion. Passaic Daily News

v. NLRB, 736 F.2d 1543, 1554 fn. 15 (D.C. Cir. 1984).

A30

EAA Ne tay Be nt

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

RESPONDENT, the discharge of Schillinger was a

preemptive strike. It was unknown to Mutter, and I find of no

importance to him, whether Schillinger’s intention to speak at

the afternoon meeting was to be in aid of concerted activity.

Mutter told Hess to remove Schillinger because Schillinger

said he would bring up employee grievances at the meeting.

Mutter’s order had nothing to do with whether Schillinger

intended to act alone or in concert. But the RESPONDENT

argues that Schillinger was (or would have been) acting alone;

therefore, discharging him was not a violation of the Act. I

disagree, and conclude that if Schillinger had been allowed to

attend the meeting and had he spoken, it is more probable

than not that he would have been engaged in concerted

activity.

Citing NLRB v. Electrical Workers Local | 229

(Jefferson Standard), 346 U.S. 464 (1953), the Respondent

argues there are limits to concerted activity which is

protected. In Jefferson Standard, employees had directed

handbills to customers of the TV station which, in essence,

Suggested that the TV station was not giving its customers

good service. For this the employees were discharged. The

Respondent analogizes the customers in Jefferson Standard

with the client of Peat Marwick in this matter. While that

analogy may be reasonable, the message to be delivered here

is fundamentally different from that in Jefferson Standard.

The message in Jefferson Standard had nothing to do with the

wages, hours, or other terms and conditions of employment

of the employees. Here Schillinger complained about, and

intended to bring up, matters directly relating to the

employment of all the trainers—long hours, inadequate

preparation time, failure to pay overtime and the like.

A31

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

The question is whether an employer can make (or as

is the case here, acquiesce in) a rule that restricts employees’

ability to engage in concerted activity by prohibiting

communication with third parties. I conclude not. The Board

has repeatedly held that employees may, with the protection

of Section 7, communicate with third parties about matters

relating to an ongoing labor dispute. See The Sacramento

Union, 291 NLRB 540 (1988), and cases cited therein,

particularly including Emarco, Inc., 284 NLRB 832 (1987)

(Chairman Dotson dissenting), and Cordura Publications Inc.,

280 NLRB 230 (1986)(Chairman Dotson dissenting), when

the employees wrote to the respondent’s parent company.

The caveat in these cases is that the communication not be so

disloyal or maliciously false to remove the employees from

the protection of the Act.

The complaints here were not false. Hess agreed that

there were problems along the lines complained of and that

steps were being taken to correct them. There is no argument

that Schillinger had made disloyal or deliberately false

statements, or that there was a reasonable fear he would do so

when talking to representatives of the State. The totality of

the Respondent’s argument is that Peat Marwick had a rule

making it inappropriate for the RESPONDENT’s employees

to take their employment concerns to "the client" and since

Schillinger would not give sufficient assurance he would not

do so, Peat Marwick asked that he be replaced. This resulted

in Schillinger’s discharge and was violative of the Act.

The Respondent contends the Peat Marwick rule was

designed to protect its legitimate interests; thus, even if

enforcement of the rule "might have the ancillary effect of

A32

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-3673]

discouraging participation unprotected activities," it is

nonetheless lawful, citing Union Carbide Corp. v. NLRB, 714

F.2d 657 (6th Cir. 1983). Union Carbide is inapposite.

There, in dicta, the court approved the Board’s decision that

an employer has a basic right to restrict the use of its

property. Union Carbide does not speak to the matter of an

employer making rules restricting the presentation of

grievances, nor was such an issue for decision.

The Respondent further relies on NLRB vy. Truck

Drivers Local 705, 630 F.2d 505 (7th Cir. 1980), denying

enforcement of a Board order that two of the Union’s business

agents were unlawfully discharged because they pressed for

a wage increase. The employees had first, and

inappropriately, asked for the wage increase at a steward’s

meeting. They knew, and were told, such as not the proper

time or place for such a demand, nevertheless, no action was

then taken against them for having done so. They were told

they would get a wage increase when they deserved one.

The court did say: "That employees are protected

while presenting wage complaints does not give them carte

blanche in choosing the method of presentation, or in their

choice of time and place for making those complaints."

However, this was not the basis for the denial of enforcement.

The court found that in addition to asking for a wage increase

at the steward’s meeting, which as long term business agents

they knew was an inappropriate forum, they misused the CB

radio and passed out flyers at a civic luncheon to the

embarrassment of the Union. Further, the executive board

had recommended their discharge for poor performance a few

months preceding these events, but as with presenting a wage

A33

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

demand at the stewards meeting, they had been given a

"second chance.” The court said, "There must be room in the

law for a right of an employer somewhere, some time, at

some state, to free itself of continuing, unproductive, internal,

and improper harassment." 630 F.2d at 509.

This holding does not mean that an employer can make

rules restricting employees from engaging in protected,

concerted activity and then require their discharge on the

anticipation that the rule might be broken.

Finally, the Respondent argues that in order to be

protected by the Act, concerted activity must arise out of a

labor dispute, again citing Jefferson Standard, and there was

no such dispute here within the meaning of Section 2(9) of the

Act. I reject this contention. First, neither Jefferson

Standard nor any other case of which I am aware so hold and

second, here there was a controversy between employees and

the Respondent concerning some conditions of employment,

which would certainly be a matter will within Section 2(9).

REMEDY

Having found that the Respondent has engaged in

certain unfair labor practices, I conclude that it must be

ordered to cease and desist such activity and to take certain

affirmative action designed to effectuate the policies of the

Act.

Although Schillinger was hired as a temporary

employee for the Peat Marwick project only, it is uncertain

whether in fact his employment would have bended in

A34

ce eemeta tel

Stat

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

November when the project was completed. About one-half

of the others so hired continue to work for the

RESPONDENT on other projects. Therefore, whether his

employment would have ended in November or continued on

are equally likely. I do not accept as dispositive Hess’s brief

and self-serving statement that Schillinger lacked the skills for

other jobs. In such matters, typically in the construction

industry, the traditional remedy is ordered, leaving to the

compliance stage the issue of whether in fact the individual

discriminated against would have been terminated at the

completion of the job for which he was hired. Dean General

Contractors, 285 NLRB 573 (1987)(Chairman Dotson

dissenting).

I shall recommend that Laurence Schillinger be offered

reinstatement to his former or substantially equivalent position

of employment and be made whole for any loss of earnings

and other benefits he may have suffered, computed on a

quarterly basis from date of discharge to date of proper offer

of reinstatement, less any net interim earnings, F. W.

Woolworth Co., 90 NLRB 289 (1950), plus interest as

computed in New Horizons for the Retarded, 283 NLRB 1173

(1987).

On these findings of fact and conclusions of law and

on the entire record, I issue the following recommended?

> If no exceptions are filed as provided by Sec. 102.46 of

the Board’s Rules and Regulations, the findings, conclusions, and

recommended Order shall, as provided in Sec. 102.48 of the Rules,

be adopted by the Board and all objections to them shall be deemed

waived for all purposes.

A35

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

ORDER

The Respondent, Compuware Corporation, Detroit,

Michigan, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging, or otherwise discriminating

against, employees because they engage in concerted activity

protected by Section 7 of the Act.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

y a Take the following affirmative action deemed

necessary to effectuate the policies of the Act.

(a) Offer Laurence Schillinger immediate and full

reinstatement to his former job or, if that job no longer exists,

to a substantially equivalent position, without prejudice to his

seniority or any other rights or privileges previously enjoyed,

and make him whole for any loss of earnings and other

benefits suffered as a result of the discrimination against him

in the manner set forth in the Remedy section of the decision.

(b) Remove from its files any reference to the

unlawful discharge and notify Schillinger in writing that this

has been done and that the discharge will not be used against

him in any way.

A36

Fie Rea SORT Me thks ae Pe> eg UTE ES

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

Board or its agents for examination and copying, all payroll

records, social security payment records, time cards,

personnel records and reports, and all other records necessary

to analyze the amount of backpay due under the terms of this

Order.

(d) Post at its Farmington Hills, Michigan, facility

copies of the attached notice marked "Appendix."* Copies of

the notice, on forms provided by the Regional Director for

Region 7, after being signed by the Respondent’s authorized

representative, shall be posted by the Respondent immediately

upon receipt and maintained for 60 consecutive days in

conspicuous places including all places where notices to

employees are customarily posted. Reasonable steps shall be

_ taken by the Respondent to ensure that the notices are not

altered, defaced, or covered by any other material.

(f) Notify the Regional Director in writing within

20 days from the date of this Order what steps the Respondent

has taken to comply.

IT IS FURTHER ORDERED that the complaint is

dismissed insofar as it alleges violations of the Act no

specifically found.

Dated, Washington, D.C. September 7, 1995

* If this Order is enforced by a judgment of a United

States court of appeals, the words in the notice reading "Posted by

Order of the National Labor Relations Board" shall read "Posted

Pursuant to a Judgment of the United States Court of Appeals

Enforcing an Order of the National Labor Relations Board."

A37

Decision of the NLRB - Compuware Corporation and

Laurence Schillinger- Case 7-CA-36731

APPENDIX

NOTICE TO EMPLOYEES POSTED BY ORDER OF

THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered us

to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of their

own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT discharge, or otherwise discriminate

against employees because they engage in concerted activity

protected by Section 7 of the Act.

WE WILL offer Laurence Schillinger immediate and

full reinstatement to his former job, or if that job no longer

exists, to a substantially equivalent position, without prejudice

to his seniority or other rights and privileges previously

enjoyed and make him whole for any loss of earnings and

other benefits suffered as a result of the discrimination against

him.

A38

UNITED STATES GOVERNMENT

NATIONAL LABOR RELATIONS BOARD

Washington, D.C. 20570

Re: Compuware Corporation

Case 7-CA-36731

Counsel:

As you know, from December 18, 1995 through

January 7, 1996 the National Labor Relations Board was

Closed due to a lack of appropriated funds. The Board

Members, however, were authorized to remain on the job and

during this time period they made every effort to continue to

decide the cases which were pending before the Board despite

the lack of support staff. Accordingly, although cases were

decided during this time period, those case could not

physically be entered into the Agency's administrative

issuance process until the Agency was opened. As you also

know, during the week January 8 the NLRB was closed for

four days because of the "blizzard of 1996".

As a result, although the date of issuance that is

reflected on the decision reflects the date on which the

decision actually was finalized by the Board Members, there

may be substantial delay between the date the Board decided

the case and the mailing of the Board's decision. The Board

views the actual mailing date of the decision as the operative

date for the filing of any motions for reconsideration with the

Board and/or for the filing of any petitions for review. See

Section 102.48(d) (2) of the Board's Rules and Regulations.

A39

NLRB Order Denying Motion

Very truly yours,

/s/

John J. Toner

Executive Secretary

Mailing date of decision January 22, 1996

A40

APPENDIX C

NOT INCLUDED IN BOUND VOLUMES

GBF

Detroit, MI

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

COMPUWARE CORPORATION

and

LAURENCE SCHILLINGER

an Individual

Case 7-CA-36731

ORDER DENYING MOTION

On December 18, 1995, the National Labor Relations

Board issued its Decision and Order in the above-entitled

proceeding, affirming the administrative law judge's finding

that the Respondent discharged Charging Party Schillinger in

violation of Section 8(a) (1) of the Act, and adopting the

judge's recommended order directing, in part, that the

A4l

NLRB Order Denying Motion

Respondent offer Schillinger reinstatement.' On February 16,

1996, the Respondent filed a Motion for Reconsideration with

the Board, alleging, among other things, that the Board erred

in failing to provide reasons for its decision, in finding that

the Respondent violated the Act, and in ordering reinstatement

as a remedy.

The Board, by a three-member panel, has considered

the motion in light of the record and has decided to deny the

motion as lacking in merit for the reasons set forth below.

First, the Respondent assails what it characterizes as the

Board's summary affirmation of the judge's decision and

failure to provide reasons therefor. The Board's decision,

however, expressly “affirm[s] the judge's rulings, findings,

and conclusions," thereby adopting his findings of fact, legal

analyses, and conclusions of law as its own. Reviewing a

similar challenge to a decision of the Board, the U.S. Court

of Appeals for the D.C. Circuit stated:

It is clear, both from our experience and as a matter of

principle, that this practice [of affirming and adopting

wholesale the reasoning of the administrative law

judge without further elaboration] is acceptable as a

general matter, for it ordinarily provides (albeit in a

manner that is relatively effortless for the Board)

sufficient explanation of the basis of the decision both

to the parties and to reviewing courts”

' 320 NLRB No. 18.

2 UFCW vy. NLRB (Dubuque Packing Co.), 880 F.2d

1422, 1436 (D.C. Cir. 1989).

A42

NLRB Order Denying Motion

Next, the Respondent asserts that the judge

erroneously decided certain issues and arguments that it

reiterated in its exceptions and now in its reconsideration

motion, and that the judge failed to address certain other

contentions.’ More specifically, the Respondent argues that:

(1) Schillinger was not engaged in concerted activity because

he did not have the authorization of other employees, and that

the judge misallocated the burden of proof in this regard; (2)

the judge erred in finding that the Respondent violated the Act

by acquiescing in Peat Marwick's request to remove

Schillinger; (3) the judge erred in concluding that an employer

may not adopt a rule prohibiting employees-from complaining

to its customers about working conditions; (4) the judge erred

in concluding that Schillinger's threat was not an act of

disloyalty; (5) the Respondent had no knowledge that

Schillinger was engaged in alleged protected, concerted

activity; (6) the activity was not protected because it did not

relate to an "ongoing labor dispute"; and (7) the record does

not justify the reinstatement remedy.

Having reviewed the Respondent's motion in light of

the Board's Decision affirming the judge's rulings, findings

and conclusions, we find that the motion fails to raise any

issue not previously considered, and otherwise lacks merit.

* The Respondent's brief in support of exceptions to the

judge's decision is attached to the motion and incorporated by

reference therein as “the factual and legal support" for

reconsideration.

A43

NLRB Order Denying Motion

ORDER

The motion for reconsideration filed by the

Respondent, Compuware Corporation, is denied as lacking in

merit.

Dated, Washington, D.C. , August 27, 1996.

William B. Gould IV, Chairman

Margaret A. Browning, Member

Sarah M. Fox, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

A44

APPENDIX D

RECOMMENDED FOR F ULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1998 FED App. 0033P

(6th Cir.)

File Name: 9820033p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 96-6625/6338

COMPUWARE CORPORATION ,

Petitioner/ Cross-Respondent,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent/ Cross-Petitioner.

On Petition for Review and Cross-Application

for Enforcement of an Order of the National Labor

Relations Board.

No. 7-CA-36731

Argued: October 20, 1997

Decided and Filed: January 28, 1998

A45

Compuware Corp. v. NLRB

Nos. 96-6225/6338

Before: MERRITT, MOORE, and BRIGHT”,

Circuit Judges.

COUNSEL

ARGUED: Ernest R. Bazzana, PLUNKETT & COONEY,

Detroit, Michigan, for Petitioner. Deborah E. Shrager,

NATIONAL LABOR RELATIONS BOARD, APPELLATE

COURT BRANCH, Washington, D.C., for Respondent. ON

BRIEF: Ernest R. Bazzana, PLUNKETT & COONEY,

Detroit, Michigan, for Petitioner. Deborah E. Shrager, Aileen

A. Armstrong, Linda Dreeben, NATIONAL LABOR

RELATIONS BOARD, APPELLATE COURT BRANCH,

Washington, D.C., for Respondent.

OPINION

BRIGHT, Circuit Judge. Compuware Corporation

("Compuware’) discharges employee Laurence Schillinger

("Schillinger") at the request of Compuware's client, KPMG

Peat Marwick ("Peat Marwick"), because Schillinger

threatened to complain about Compuware's employment

practices to the State of Michigan ("the State"). Peat Marwick

had obtained a contract from the State to upgrade the State's

computer system. The discharge led to an unfair labor

practice charge against Compuware under section 8(a)(1) and

(3) of the National Labor Relations Act (29 U.S.C. § 158

The Honorable Myron H. Bright, Circuit Judge of the

United States Court of Appeals for the Eighth Circuit, sitting by

designation.

A46

Compuware Corp. v. NLRB

Nos. 96-6225/6338

(a)(1) and (3)) ("the Act"). Following an administrative

hearing, the administrative law judge ("ALJ") found

Compuware had discharged Schillinger in violation of section

8(a)(1) of the Act and recommended that Compuware offer

Schillinger reinstatement and back pay. The Board affirmed

the ALJ's ruling, Compuware Corp. and Laurence

Schillinger, 320 NLRB 101 (1995), and thereafter rejected

Compuware's motion for reconsideration, Case 7-CA-3673 I,

order dated August 27, 1996. In essence, the Board's decision

determined that Schillinger had engaged in protected

concerted activity in raising employee concerns with the

employer and that his threat to raise those concerns with the

State of Michigan did not justify the discharge.

Compuware filed a petition for review and the

National Labor Relations Board cross-applied for enforcement

of the Board's order. We reject Compuware's petition for

review and enforce the Board's order. Our review of the

record as a whole demonstrates that the Board's order is

supported by substantial evidence.

I. BACKGROUND

The State awarded Peat Marwick, an accounting firm,

a contract to upgrade the State's computer system. Peat

Marwick then contracted with Compuware, headquartered in

Farmington Hills, Michigan, to furnish support personnel to

train the State's employees on the new computer system. The

training took place in the Knapp Building in Lansing,

Michigan, some distance from Compuware's headquarters.

Laurence Schillinger, the charging party, began

A47

Compuware Corp. v. NLRB

Nos. 96-6225/6338

working in a temporary trainer position for Compuware in

early July 1994. Schillinger discussed work-related problems

with other employees from the very beginning of his

employment. On August 22, 1994, Compuware terminated

Schillinger from the State project at the direction of Peat

Marwick. Peat Marwick decided to remove Schillinger

because Schillinger had threatened on August 19, 1994 to

approach the State with work-related concerns, in violation of

a Peat Marwick work rule. Tr. at 147-49, 273-78.'

Compuware, in its petition for review, contends that

the ALJ's decision adopted by the Board is incorrect as a

matter of law and fact. Although Compuware raises several

issues in this appeal,’ we will focus primarily on the issue

' "Tr." refers to the transcript of the proceeding before

the ALJ on June 12, 1995 and June 13, 1995 which is set forth in

a single volume paginated consecutively.

2 In its petition for review, Compuware raised the

following issues: (1) whether the ALJ erred in finding that

Schillinger had engaged in concerted activity; (2) whether the ALJ

erred when he failed to address the issue of employer knowledge as

an element required to be proven by the Board; (3) whether the

ALJ erred in his conclusion that Peat Marrick was not entitled to

promulgate a work rule which prohibits employee communication

of work-related concerns with Peat Marwick's client; (4) whether

the ALJ erred when he failed to balance Peat Marwick's work rule

against any incidental effect on employee rights under the Act; (5)

whether the ALJ erred in finding that an ongoing labor dispute is

not required to justify employees approaching third parties with

work-related complaints, and in finding that an ongoing labor

dispute was present in this case; (6) whether the ALJ erred in

A48

Compuware Corp. v. NLRB

Nos. 96-6225/6338

orally argued by Compuware, which is whether substantial

evidence supports the Board's finding that Schillinger engaged

in concerted activity, rather than merely his own concerns.

We will discuss briefly Compuware's other issues.

II. DISCUSSION

Section 8(a)(1) of the Act makes it an unfair labor practice

"to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section [7] .... "29 U.S.C.

§ 158(a)(1). Section 7 of the Act guarantees employees the

right to engage in "concerted activities" not only for self-

organization, but also "for the purpose of...mutual aid or

protection "29 U.S.C. § 157. The broad protection of section

7 includes protecting unorganized employees who need to

speak for themselves as best they can. NLRB v. Washington

Aluminum Co., 370 U.S. 9, 14 (1962).

The Board's determination that an employee engaged

protected concerted activity is entitled to great deference.*

failing to address the issue of whether Schillinger's discharge was

motivated by or substantially based upon his participation in alleged

protected activity; (7) whether the ALJ erred in holding

Compuware responsible for the actions of Peat Marwick; and (8)

whether the remedy ordered by the ALJ was inappropriate, does

not effectuate the purposes of the Act and is not justified by the.

record. The Board adopted as its own with minor modifications the

decision by the ALJ, including rulings, findings, and conclusions.

> In NLRB v. Webcor Packaging, Inc., 118 F.3d 1115

(6th Cir. 1997), we articulated that the standard of review under

A49

Compuware Corp. v. NLRB

Nos. 96-6225/6338

Dayton Typographic Serv., Inc. v. NLRB, 778 F.2d 1188,

1191 (6th Cir. 1985). The Board's findings are entitled to

affirmance if supported by substantial evidence in the record

as a whole, and we may not reverse such a finding even if this

panel "would justifiably have made a different choice had the

matter been before it de novo.” Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951).

A. Concerted Activity

Compuware argues that Schillinger's actions fall

outside the protection of section 7 because his activity was not

concerted. Compuware contends that although Schillinger's

concerns may have been shared by other coworkers, no

evidence indicates that any coworker authorized Schillinger to

represent them. Compuware argues that without such

authorization, Schillinger's actions would not constitute

concerted activity.

Specific authorization is not needed to show

"concerted activity.” See NLRB v. Lioyd A. Fry Roofing Co.,

651 F.2d 442, 445 (6th Cir. 1981) ("It is not necessary that

Holly Farms is that if Congress has not spoken on an issue, the

Board is entitled to deference so long as its interpretation of the Act

is a reasonable one. /d. at 1119 (citing Holly Farms Corp. v.

NLRB, 116 S. Ct. 1396 (1996)). This standard of review accords

with Sixth Circuit precedent giving deference to legal

determinations of the Board. See Emery Realty, Inc. v. NLRB, 863

F. 2d 1259, 1262 (6th Cir. 1988); General Truck Drivers,

Chauffeurs, Warehousemen and Helpers of Am., Local No. 957 v.

NLRB, 934 F.2d 732, 735 (6th Cir. 1991).

ASO

Compuware Corp. v. NLRB

Nos. 96-6225/6338

the individual employee be appointed or nominated by other

employees to represent their interests."); Dayton Typographic

Serv., 778 F.2d at 1191; NLRB v. Guernsey-Muskingum Elec.

Coop., Inc., 285 F.2d 8, 12 (6th Cir. 1960). Rather, conduct

of an individual employee may be considered "concerted

activity" if the employee's actions are "made on behalf of

other employees or at least . . . made with the object of

inducing or preparing for group action . .", ARO, Inc. v.

NLRB, 596 F.2d 713, 718 (6th Cir. 1979). Activity is

concerted "if it is related to group action for the mutual aid or

protection of other employees.” Lloyd Fry Roofing, 651 F.2d

at 445. Therefore, the relevant question is whether the

employee acted with the purpose of furthering group goals.

Comparing this case to Manimark Corp. v. NLRB,‘ 7

F.3d 547, 550 (6th Cir. 1993), Compuware argues that the

Board did not show Schillinger was acting for the group. The

following findings of fact made by the ALJ and adopted by

* In Manimark, this court held that employee Hurley

Fields had not engaged in protected concerted activity because there

was no “evidence that Fields was acting in anyone's interest but his

own . . ." Manimark, 7 F.3d at 551. This court noted that Fields

brought up group complaints as an afterthought to a conversation

concerning his commissions. This court further emphasized that

"Fields' refusal to follow up on the problems by arranging a group

meeting weakens his argument that he was acting on behalf of other

drivers." /d. This court did not simply look at the group nature of

the complaint. Rather, this court looked at other evidence to

indicate if coworkers had decided to act upon their complaints. This

court did not find evidence to indicate Fields' coworkers wanted to

pursue any action.

A51

Compuware Corp. v. NLRB

Nos. 96-6225/6338

the Board belie this argument:

Schillinger testified that almost from the beginning

of his employment he discussed these problems with

other employees. And on the morning of August 19,

Schillinger had a discussion about these matters with

Master Trainer Michael Wilhite (whom the parties

stipulated was an employee and not a supervisor

within the meaning of Section 2(11) of the Act), at

which employees Hugh Kessler and Roger Diamond

[sic]? were present. During this discussion, Schillinger

became agitated and told Wilhite that if nothing

Satisfactory was done, he would express these

concerns at a meeting scheduled that afternoon at

which there would be representatives of the State as

well as Peat Marwick [sic].

Wilhite told Schillinger that it would be improper

for him to bring up these problems at the meeting with

State representatives, to which, Wilhite testified,

Schillinger said, "We'll see." Wilhite called John

Hess, [Compuware's] account manager for this project

to report Schillinger's intent. Hess was not available

and Willhite left a voice mail message; but he also

called James Michael Mutter, who at the time was the

Peat Marwich [sic] on site team leader for the project.

Mutter was concerned that Schillinger would in fact

Dymond.

The correct spelling of Roger Diamond's last name is

AS2

Compuware Corp. v. NLRB

Nos. 96-6225/6338

raise these issues with the client, and absent assurance

he would not, Mutter wanted him taken off the

project. Mutter and Hess testified that Peat Marwick

retained the right to require [Compuware] to withdraw

any employee from the project.

Hess returned Wilhite's call, learned of the

Situation and came to the project. He talked with

Schillinger and Wilhite and at Schillinger's invitation,

joined several trainers for lunch to talk about various

work related problems. Shortly thereafter, Hess talked

to Mutter, who stated he was so concerned that

Schillinger might bypass the chain of command that he

was considering canceling the meeting. Mutter asked

if Hess could give him assurances that Schillinger

would not bring up these problems at the meeting, and

when Hess could not, Mutter said he would have to

find out what to do. It appears, however, though

somewhat unclear, that Mutter first told Hess that

Schillinger should not go to the meeting and told him

to give Schillinger the rest of the day off. Then Mutter

checked with his superiors and they concluded that

Schillinger should be replaced, and this order came

later.

Saturday Hess called Schillinger and asked him to

report to Hess's office on Monday, August 22.

Schillinger did so and was informed by Hess that he

was being terminated from the project at the direction

of Peat Marwick. Since Schillinger was a temporary

employee for that particular project, and, according to

Hess, deemed insufficiently skilled for other jobs, he

A53

Compuware Corp. v. NLRB

Nos. 96-6225/6338

was terminated from employment with [Compuware].

Compuware Corp. and Laurence Schillinger, 320 NLRB 101,

102 (1995).

Two coworkers testified that they had not authorized

Schillinger to represent their concerns to management.

However, the Board's finding that Schillinger's proposed

action would have been concerted is not undermined by the

fact no employee specifically endorsed Schillinger's proposal

to raise employees' grievances to State representatives. See

NLRB v. Parr Lance Ambulance Serv., 723 F.2d 575, 579

(7th Cir. 1983). Therefore, the testimony, of Schillinger’s two

coworkers is not necessarily determinative of the issue

whether Schillinger was acting on behalf of the group interests

or for his own self-interest.

Our review of other evidence from the hearing

demonstrates concerted activity. We note that from the

beginning of his employment, Schillinger had discussed work-

related concerns with many of the thirty other trainers.

Furthermore, we consider the evidence of the exchange

between Schillinger and the employees on August 19 to be

revealing. Roger Dymond testified that during Schillinger's

argument with Wilhite on the morning of August 19, 1994,

Schillinger said "he was going to speak for ALJ of us that

afternoon [at the meeting] ..." Tr. at 304. In addition,

Schillinger showed that he was acting on behalf of the group

by facilitating a lunch discussion between managers and

trainers on August 19. The employees demonstrated sharing

Schillinger's interest in obtaining resolution of their

grievances by attending the lunch meeting at his request.

A54

Compuware Corp. v. NLRB

Nos. 96-6225/6338

Moreover, Schillinger made it known to management and his

coworkers that he had organized a labor union at a previous

job and received a degree in labor relations. In fact, some of

the other trainers had previously commented that because

Schillinger, who had been a unions steward at a former job,

"knows this stuff, he should talk to the management people."

Tr. at 183.

After reviewing the entire record, we conclude that the

evidence regarding the morning discussion and lunch indicates

that if Schillinger had attended the afternoon meeting with the

State and Peat Marwick representatives, he would have

restated the concerns of the trainers as a group. The evidence

demonstrates that Schillinger expressed group concerns to his

coworkers and management. The lunch attended by Wilhite,

manager Hess and Schillinger demonstrates Schillinger's

interest and effort on behalf of the group, which constitutes

concerted activity. Thus, unlike the employee in Manimark,

Schillinger acted on behalf of the group and not simply on his

own behalf.

B. Peat Marwick Work Rule

Compuware contends that Peat Marwick's work rule

prohibiting employees from complaining to its clients

regarding working conditions was valid under section 7 of the

Act. Compuware argues work rules are allowed when the rule

is designed to protect legitimate employer interests even

where there may exist an ancillary effect of discouraging

participation in protected activities. Union Carbide Corp. v.

NLRB, 714 F.2d 657, 664 n.3 (6th Cir. 1983). However, this

work rule on its face does not appear to strike any sort of

A55

Compuware Corp. v. NLRB

Nos. 96-6225/6338

balance between employee fights and the legitimate concerns

of Peat Marwick. An employer may not enforce a rule that

improperly interferes with its employees’ statutory right to

engage in concerted activity. See Republic Aviation Corp. v.

NLRB, 324 U.S. 793, 801-804 (1945). We affirm the Board's

ruling that Peat Marwick cannot institute a work rule that

restricts employees’ ability to engage in concerted activity by

prohibiting communication with third parties.

C. Ongoing Labor Dispute

Compuware argues that the Board erred in stating an

ongoing labor dispute was not required to be protected

concerted activity when that activity was going to third parties

with work-related complaints. Compuware also contends the

Board erred in finding that an ongoing labor dispute was

present in this case. Compuware contends that no ongoing

labor dispute was present because management was on the

same side as the workers and was addressing the work-related

problems. The Supreme Court held that a labor dispute can

still exist when management begins to aduress employees’

complaints about their working conditions. See NLRB v.

Washington Aluminum Co., 370 U.S. 9 (1962). The Supreme

Court noted that the conduct may at that point be

“unnecessary and unwise" but the reasonableness of the

decision to engage in concerted activity is simply "irrelevant

to whether a labor dispute exists or not." /d. at 16. Substantial

evidence supports the Board's findings that Schillinger and

other employees were involved in a dispute over conditions of

employment. Therefore, we reject Compuware's argument

that no labor dispute existed.

A56

Compuware Corp. v. NLRB

Nos. 96-6225/6338

D. Disloyalty to Employer

Compuware also argues that Schillinger's actions if

concerted were not protected but instead were acts of

disloyalty to the employer. This argument is also rejected.

Employees have the right to engage in concerted

communications with third parties regarding legitimate

employee concerns, such as terms and conditions of

employment and grievances. Sierra Publishing Co. v. NLRB,

889 F.2d 210, 216-17 (9th Cir. 1989). An employee's appeal

to a third party or in this case a client only loses its protected

status if the appeal does not relate to the labor practices of the

employer or are maliciously false. Handicaps, Inc. and

Ronald F. Trail, 318 NLRB 890, 896 (1995), enforced, 95

F.3d 681,684-85 (8th Cir. 1996). If Schillinger had discussed

work-related concerns with the State, the discussions, while

violating Peat Marwick's work rule, would not have lost their

protected status.

We agree with the Board's opinion and analysis on this

issue:

The question is whether an employer can make (or

as is the case here, acquiesce in) a rule that restricts

employees’ ability to engage In concerted activity by

prohibiting communication with third parties. I

conclude not. The Board has repeatedly held that

employees may, with the protection of Section 7,

communicate with third parties about matters relating

to an ongoing labor dispute. See The Sacramento

Union, 291 NLRB 540 (1988), and cases cited therein,

particularly including Emarco, Inc., 284 NLRB 832

A57

Compuware Corp. v. NLRB

Nos. 96-6225/6338

(1987) (Chairman Dotson dissenting), and Cordura

Publications Inc., 2830 NLRB 230 (1986) ‘Chairman

Dotson dissenting), when the employees wvote to the

respondent's parent company. The caveat in these

cases is that the communication not be so disloyal or

maliciously false to remove the employees from the

protection of the Act.

The complaints here were not false. Hess agreed

that there were problems along the lines complained of

and that steps were being taken to correct them. There

is no argument that Schillinger had made disloyal or

deliberately false statements, or that there was a

reasonable fear he would do so when talking to

representatives of the State. The totality of

{Compuware's] argument is that Peat Marwick had a

rule making it inappropriate for [Compuware's]

employees to take their employment concerns to "the

client" and since Schillinger would not give sufficient

assurance he would not do so, Peat Marwick asked

that he be replaced. This resulted in Schillinger's

discharge and was violative of the Act.

Compuware Corp. and Laurence Schillinger, 320 NLRB 101,

103 (1995).

E. Responsibility of Peat Marwick for the Discharge

Compuware argues the Board erred by holding

Compuware responsible for Schillinger's discharge when the

discharge was requested by its client Peat Marwick. However,

Compuware was not unaware of why Peat Marwick wanted

A5S8

Compuware Corp. v. NLRB

Nos. 96-6225/6338

Schillinger to be discharged. In fact, Compuware knew the

basis of the removal was to prevent Schillinger from

cummunicating with its client, the State, about employee

grievances. In addition, a private agreement that violates

statutory labor provisions is unenforceable. See Clinch Valley

Clinic Hosp. v. NLRB, 516 F.2d 996, 998-99 (4th Cir. 1975).

We therefore reject this argument against enforcement of the

decision.

F. Remedy

Compuware argues that the remedy ordered by the

Board is inappropriate and not justified by the record.

Compuware contends it is unlikely Schillinger would have

been retained after the project because only one half of the

temporary employees from the project continued to be

employed and Schillinger was less qualified than most of the

employees. The standard of review of a remedial order is

abuse of discretion. Taylor Warehouse Corp. v. NLRB, 98

F.3d 892, 903 (6th Cir. 1996). At this Stage, the Board's

decision that Schillinger should be reinstated is not an abuse

of discretion as it is the normal remedy in an unlawful

discharge case. See Dean General Contractors, 285 NLRB

573, 573 (1987). However, at the compliance stage of the

order, Compuware can further raise the issue of whether

Schillinger would have been terminated at the end of the

project.

Ill. CONCLUSION

For the foregoing reasons, enforcement of the decision

and order of the Board is GRANTED.

AS9

aia

APPENDIX E

96-6225/6338

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

MARCH 13, 1998

PPL ee tee a ee

LEONARD GREEN, Clerk

COMPUWARE CORPORATION,

Petitioner/Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

ORDER

BEFORE: MERRITT, MOORE, and BRIGHT,”

Circuit Judges.

eeeees

Hon. Myron H. Bright, Senior United States Circuit

Judge for the Eighth Circuit Court of Appeals, sitting by designation.

A60

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to ALJ other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en bane, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission anti

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk,

Aél

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.