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Concerted Activity? Kentucky

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  • Concerted Activity? Kentucky

    My employer is subject to NLRB regs, including concerted activity. Here is the situation:

    Employee (who has had numerous write-ups including negligent use of company equipment, poor performance, substandard work, insubordination) and we also have irrefutable evidence that he lied to help out a buddy (former employee) that filed a workers compensation suit against us (he later admitted to his manager that he should not have lied during his testimony and "put his own neck on the line" like that for the former employee). We now have suspicion of theft, but no proof.

    His manager informed me that one of his coworkers informed the manager that this employee was standing with him and another coworker and was badmouthing the company. "I hate this place, I'm done with this place. I hope they do fire me" (cursing omitted). Apparently, according to the coworker, he was mad because he had not had an evaluation yet. Additionally, the employee called in to work "sick" the next morning, basically telling his manager, "I'm sick, I won't be there today" and hanging up on him.

    My question is this. This isn't considered "concerted activity" under NLRB regs is it? He wasn't complaining directly about his working conditions, he wasn't attempting to "bring something to the table" and get a resolution from the employer, and he wasn't complaining with another employee that agreed and were going to come to us on behalf of two or more employees. It was just general griping, I think. I just want to make sure someone else sees it that way as well. I want to terminate the employee, which in reality should have been done years ago. Hindsight 20/20 and all that.

    Thanks all!

  • #2
    Soft answer. Pretend that you are a dispassionate third party, and you have NOTHING to base your decisions on but what is in the personnel file. How much of what you just said is supported by the file? Where the events responded to in a timely manner? Is your version of events contradicted by the file?

    I am not saying edit the file. I am saying if your normal personnel management is not generating paper supporting your version of the story, then you are making it easy for the employee to present an alternative version.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      Are you planning to fire him for lying, negligent use of company equipment, poor performance, substandard work, and insubordination or because he mouthed off about work conditions? The former is absolutely legal. The second treads a very fine line you have no reason to walk given the former. Expect him to get unemployment but consider it to be the best money ever spent.

      You need to have a little chat with his supervisor as well to find out why this guy was with you as long as he was to begin with.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


      • #4
        Reply to ElleMD

        I'm planning on terminating based on the badmouthing (the most recent other issue I mentioned, the suspected theft, was over a month ago. The other infractions have dated all the way back to the beginning of his employment, 8 years ago). I just feel like it's too long to try to use those as the reasons, but I needed a "final straw". Yes, I realize he should have been terminated years ago. Unfortunately, as the HR manager, I provide the "guidance", but often get pushback by Operations. They've allowed bad behavior for so long, they miss perfect opportunities to let someone go with no issues whatsoever. I was going to just terminate and recap the conversation he had with his coworker, let him know that his comments (F this place, I hope they do fire me, etc) does not support our company's vision and mission, and because there is a history of ethical and performance issues with him, we have decided it is in both our best interests to terminate his employment.

        I will fight unemployment based on misconduct (An employee is obligated to render loyal, diligent, faithful and obedient service to his employer and failure to do so is a disregard of the standards of behavior which the employer can expect of his employee). But I realize I may lose the unemployment case (I've been surprised more than a few times of the UI Commissions decision). I know I should have insisted we terminate based on one of the iron clad reasons we would have had before, but I just want to make sure this doesn't seem like a NLRA violation of concerted activity (since he was complaining, but it wasn't really about his working conditions, and it doesn't seem to meet the other prongs for protection).

        Also, this employee is not in a protected class of any type, so I think I'm fine from an EEOC perspective. Thanks for your responses!


        • #5
          I agree it would be walking a fine line if the badmouthing is all you are using. I would consult legal counsel prior to pulling the plug.

          Have you gotten backup from the 3rd employee who was there at the time? So that it is not just one employee's word against this employee?

          I'd honestly say less rather than more at termination time. I understand wanting to justify the termination to him, but you may be in fact waiving a red flag in front of a bullish person and begging him to fight you over whatever reason is given. Attitude is hard to punish but performance is not. You stated his evaluation has not been completed. Why not? Is the manager being smart in not documenting any issues? I don't think so. I would have the supervisor do the performance plan on what needs to change and go from there. And let that be a final warning that he needs to change or he will be gone. If you were one of my managers, I would tell you to document this well, issue a final to the employee and then go from there as I don't think you have "enough" to easily stave off a complaint such as EEOC/NLRA.....


          • #6
            You probably don't have enough to get cited by the NLRB but that doesn't mean this guy can't make a lot of trouble filing a complaint. If his performance is poor, go with that. Considering "you" were willing to overlook some pretty major offenses in the past, it does look a bit shady to now claim his bad mouthing the company is really what tipped it over the edge. The "good" thing about like employees like this is they don't take long to hang themselves.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


            • #7
              Thanks for your insights!