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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1123

## 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,

V.
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.

ll

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

ee

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

iV

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

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.

l

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)

2

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

4

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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

5

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)

6

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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.

5

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.

8

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.

10

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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

11

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:

12

“(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.

14

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

15

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.

16

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.

17

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

18

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

19

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

20

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.

21

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:

22

"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)

23

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

24

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).

3
4
4
$

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

25

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

26

esi ai a ig

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i sal

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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

27

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).

28

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

29

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

30

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

31

Se ee ae ae

APPENDIX

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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

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JD-135-95
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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.

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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

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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

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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

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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.

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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).

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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

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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

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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

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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.

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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

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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.

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(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.

(c) Preserve and, on request, make available to the
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

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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

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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.

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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

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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.

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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.

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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.

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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

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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

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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

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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

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Decision of the NLRB - Compuware Corporation and
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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

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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).

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Decision of the NLRB - Compuware Corporation and
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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.

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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

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Decision of the NLRB - Compuware Corporation and
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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

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Decision of the NLRB - Compuware Corporation and
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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

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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.

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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.

(c) Preserve and, on request, make available to the

A36

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Decision of the NLRB - Compuware Corporation and
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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."

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Decision of the NLRB - Compuware Corporation and
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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 Decem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1427%3A1. Public record. Not legal advice.