Lawful Firing for Criticism of Employer’s Practices

Does firing an employee who posts a Web site criticizing the competency of his employer’s managers violate the National Labor Relations Act?

    That was the situation involving Endicott Interconnect Technologies. A union that had been trying to organize employees asked Richard White, a union member, to speak to a news reporter about recent layoffs at the employer’s plant. The newspaper article quoted White as saying there were “gaping holes” in the business. Dismayed at White’s comments, the company counseled him not to disparage Endicott.

    White later posted a message on a Web site asserting that the “business is being tanked by a group of people that have no good ability to manage it.” When White was fired, he claimed that Endicott committed an unfair labor practice by firing him for concerted protected activity in violation of the NLRA.

    The District of Columbia Court of Appeals disagreed with White. According to the court, the NLRA protects employees who are engaged in concerted activity for the purpose of collective bargaining or other mutual aid or protection. An employee’s communication to a third party is protected if it is related to an ongoing labor dispute and is “not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” White’s communications unquestionably were detrimentally disloyal. An employer has good cause to terminate an employee whose criticism of the employer amounts to insubordination, disobedience or disloyalty. Endicott Interconnect Techs. Inc. v. NLRB (D.C. Cir. July 14, 2006).

    Impact: Employers are cautioned that, generally, federal law affords employees broad right to criticize matters involving the workplace without fear of retaliation by the employer.

Workforce Management, August 28, 2006, p. 11 — Subscribe Now!