Compuware Corp.

National Labor Relations Board - Board Decisions

Dec 18, 1995

320 N.L.R.B. 101 (N.L.R.B. 1995)

101
320 NLRB No. 18
COMPUWARE CORP.
1 We have modified the notice to employees to conform to lan-
guage of the recommended Order. 1 All dates are in 1994 unless otherwise indicated.
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 Re-
spondent 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 recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended 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, ex-
cept the attached notice is substituted for that of the
administrative law judge.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected 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 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 re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge 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.
Sak, Esq., of Farmington Hills, Michigan, for the Respond-
ent.
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, 1994,1 the Respondent discharged Lau-
rence 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 engaged in a violation of
the Act. The Respondent affirmatively contends that the ac-
tivity for which Schillinger was discharged was not con-
certed 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 make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Michigan corporation engaged in pro-
viding computer software and services to various companies,
during the course of which business it annually derives gross
revenues in excess of $1 million and annually provides serv-
ices to customers outside the State of Michigan in excess of
$50,000. The Respondent admits, and I find, that it is an em-
ployer engaged in interstate commerce within the meaning of
Section 2(2), (6), and 2(7) of the Act.
II. THE ALLEGES UNFAIR LABOR PRACTICES
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
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 posi-
tion. 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 employ-
ees. And on the morning of August 19, Schillinger had a dis-
cussion 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 agi-
tated 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 rep-
resentatives, to which, Wilhite testified, Schillinger said,
‘‘We’ll see.’’ Wilhite called John Hess, the Respondent’s ac-
count manager for this project to report Schillinger’s intent.
Hess was not available and Wilhite left a voice mail mes-
sage; 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 con-
cerned 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 or
Mutter, although later in the afternoon, without imput from
Wilhite, Hess asked if Schillinger was there to organize and
Wilite 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 organi-
zation played a role in the Respondent’s decision to termi-
nate 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 allega-
tion of the complaint be dismissed.
I further conclude, however, that Schillinger had been en-
gaged 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 air-
ing them to the Peat Marwick client.
One of the seven avenues the Respondent argues was
available to Schillinger was the weekly ‘‘Heads Up’’ meet-
ing. 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 Re-
spondent’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 em-
ployee 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 em-
ployee 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 employ-
ees were being presented to Hess in concert. Schillinger in-
vited 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 pri-
vately that he agreed with many of Schillinger’s concerns,
103COMPUWARE CORP.
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).
but he did not agree with Schillinger’s approach. Employee
Roger Diamond, called as a witness by the Respondent, testi-
fied that Schillinger told Wilhite he intended to speak for all
employees at the ‘‘Heads Up’’ meeting. Diamond further tes-
tified 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.2 But, this does not
prove that Schillinger did not have the authorization of oth-
ers or, more importantly, would not have been engaged in
the furtherance of concerted action had he attended and spo-
ken 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 II), that
‘‘encompasses those circumstances where individual employ-
ees 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 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 Jeffer-
son 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 reason-
able, the message to be delivered here is fundamentally dif-
ferent from that in Jefferson Standard. The message in Jef-
ferson 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 train-
ers—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 commu-
nication with third parties. I conclude not. The Board has re-
peatedly held that employees may, with the protection of
Section 7, communicate with third parties about matters re-
lating to an ongoing labor dispute. See Sacramento Union,
291 NLRB 540 (1988), and cases cited therein, particularly
including Emarco, Inc., 284 NLRB 832 (1987) (Chairman
Dotson dissenting), and Cordura Publications, 280 NLRB
230 (1986) (Chairman Dotson dissenting), when the employ-
ees 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 protec-
tion 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 state-
ments, 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 de-
signed to protect its legitimate interests; thus, even if en-
forcement of the rule ‘‘might have the ancillary effect of dis-
couraging participation unprotected activities,’’ it is nonethe-
less 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 em-
ployer 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 v. Truck Drivers
Local 705, 630 F.2d 505 (7th Cir. 1980), denying enforce-
ment 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 inappropri-
ately, 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 embarrass-
ment of the Union. Further, the executive board had rec-
ommended their discharge for poor performance a few
months preceding these events, but as with presenting a wage
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
4 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.’’
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, inter-
nal, 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, con-
certed activity and then require their discharge on the antici-
pation that the rule might be broken.
Finally, the Respondent argues that in order to be pro-
tected by the Act, concerted activity must arise out of a labor
dispute, again citing Jefferson Standard, supra, 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 employ-
ment, 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 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 No-
vember 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 re-
instatement 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. Wool-
worth 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 recommended3
ORDER
The Respondent, Compuware Corporation, Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, or otherwise discriminating against, em-
ployees because they engage in concerted activity protected
by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Laurence Schillinger immediate and full rein-
statement 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 bene-
fits 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, timecards, 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.’’4 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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.