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Your Employee Matters


By June 1, 2012No Comments

The U.S. Court of Appeals for the D.C. Circuit has found that an employer was required to reinstate an employee who the NLRB determined had been terminated unlawfully, despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees.

One employee had been terminated after confronting a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event at which he spoke critically about the employer, claiming that the employer failed to staff its newsroom adequately and that he had considered starting a rival newspaper.

In a separate incident, another employee was terminated after making a surreptitious recording of a meeting with management in which he expected to receive discipline but was denied the right to union representation.

With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in “protected activity” when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was legal under state and local law.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (

Editor’s note: if employers don’t get by now what the administration is up to when it comes to protecting disgruntled employees, cases such as this should be a resounding wake-up call! Do yourself a favor and watch our recent NLRB webinar.