Compuware Corp. v. N.L.R.B.

• Decision Date: 13 March 1998
• Docket Number: 96-6338,Nos. 96-6225,s. 96-6225
• Citation: 134 F.3d 1285
• Parties: 157 L.R.R.M. (BNA) 2346, 35 Lab.Cas. P 10,113 COMPUWARE CORPORATION, Petitioner/ Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/ Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1285

134 F.3d 1285

157 L.R.R.M. (BNA) 2346, 35 Lab.Cas. P 10,113

COMPUWARE CORPORATION, Petitioner/ Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/ Cross-Petitioner.

Nos. 96-6225, 96-6338.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 20, 1997.

Decided Jan. 28, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March 13, 1998.

Ernest R. Bazzana (argued and briefed), Plunkett & Cooney, Detroit, MI, for Petitioner/Cross-Respondent.

Deborah E. Shrager (argued and briefed), Linda Dreeben (briefed), Aileen A. Armstrong Before: MERRITT, MOORE, and BRIGHT ^*, Circuit Judges.

Deputy Associate Gen. Counsel (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

OPINION

BRIGHT, Circuit Judge.

Compuware Corporation ("Compuware") discharged its employee Laurence Schillinger ("Schillinger") at the request of Compuware's client, KPMG Peat Marwick ("Peat Marwick"), because Schillinger threatened to complain about Compuware's employment practices to the State of Michigan ("the State"). Peat Marwick had obtained a contract from the State to upgrade the State's computer system. The discharge led to an unfair labor practice charge against Compuware under section 8(a)(1) and (3) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) and (3)) ("the Act"). Following an administrative hearing, the administrative law judge ("ALJ") found Compuware had discharged Schillinger in violation of section 8(a)(1) of the Act and recommended that Compuware offer Schillinger reinstatement and back pay. The Board affirmed the ALJ's ruling, Compuware Corp. and Laurence Schillinger, 320 NLRB 101, 1995 WL 789963 (1995), and thereafter rejected Compuware's motion for reconsideration, Case 7-CA-36731, order dated August 27, 1996. In essence, the Board's decision determined that Schillinger had engaged in protected concerted activity in raising employee concerns with the employer and that his threat to raise those concerns with the State of Michigan did not justify the discharge.

Compuware filed a petition for review and the National Labor Relations Board cross-applied for enforcement of the Board's order. We reject Compuware's petition for review and enforce the Board's order. Our review of the record as a whole demonstrates that the Board's order is supported by substantial evidence.

I. BACKGROUND

The State awarded Peat Marwick, an accounting firm, a contract to upgrade the State's computer system. Peat Marwick then contracted with Compuware, headquartered in Farmington Hills, Michigan, to furnish support personnel to train the State's employees on the new computer system. The training took place in the Knapp Building in Lansing, Michigan, some distance from Compuware's headquarters.

Laurence Schillinger, the charging party, began working in a temporary trainer position for Compuware in early July 1994. Schillinger discussed work-related problems with other employees from the very beginning of his employment. On August 22, 1994, Compuware terminated Schillinger from the State project at the direction of Peat Marwick. Peat Marwick decided to remove Schillinger because Schillinger had threatened on August 19, 1994 to approach the State with work-related concerns, in violation of a Peat Marwick work rule. Tr. at 147-49, 273-78. ¹

Compuware, in its petition for review, contends that the ALJ's decision adopted by the Board is incorrect as a matter of law and fact. Although Compuware raises several issues in this appeal, ² we will focus primarily on the issue orally argued by Compuware, which is whether substantial evidence supports the Board's finding that Schillinger engaged in concerted activity, rather than merely his own concerns. We will discuss briefly Compuware's other issues.

II. DISCUSSION

Section 8(a)(1) of the Act makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section ...." 29 U.S.C. § 158(a)(1). Section 7 of the Act guarantees employees the right to engage in "concerted activities" not only for self-organization, but also "for the purpose of ... mutual aid or protection...." 29 U.S.C. § 157. The broad protection of section 7 includes protecting unorganized employees who need to speak for themselves as best they can. NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 1102-03, 8 L.Ed.2d 298 (1962).

The Board's determination that an employee engaged in protected concerted activity is entitled to great deference. ³ Dayton Typographic Serv., Inc. v. NLRB, 778 F.2d 1188, 1191 (6th Cir.1985). The Board's findings are entitled to affirmance if supported by substantial evidence in the record as a whole, and we may not reverse such a finding even if this panel "would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

A. Concerted Activity

Compuware argues that Schillinger's actions fall outside the protection of section 7 because his activity was not concerted. Compuware contends that although Schillinger's concerns may have been shared by other coworkers, no evidence indicates that any coworker authorized Schillinger to represent them. Compuware argues that without such authorization, Schillinger's actions would not constitute concerted activity.

Specific authorization is not needed to show "concerted activity." See NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442, 445 (6th Cir.1981) ("It is not necessary that the individual employee be appointed or nominated by other employees to represent their interests."); Dayton Typographic Serv., 778 F.2d at 1191; NLRB v. Guernsey-Muskingum Elec. Coop., Inc., 285 F.2d 8, 12 (6th Cir.1960). Rather, conduct of an individual employee may be considered "concerted activity" if the employee's actions are "made on behalf of other employees or at least ... made with the object of inducing or preparing for group action...." Aro, Inc. v. NLRB, 596 F.2d 713, 718 (6th Cir.1979). Activity is concerted "if it is related to group action for the mutual aid or protection of other employees." Lloyd Fry Roofing, 651 F.2d at 445. Therefore, the relevant question is whether the employee acted with the purpose of furthering group goals.

Comparing this case to MANIMARK CORP. V. NLRB, 7 F.3D 547, 550 (6TH CIR.1993)⁴ , Compuware argues that the Board did not show Schillinger was acting for the group. The following findings of fact made by the ALJ and adopted by the Board belie this argument:

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 [sic] ⁵ 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 [sic].

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, [Compuware'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 [sic] 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 [Compuware] 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 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 [Compuware].

Compuware Corp. and Laurence Schillinger, 320 NLRB 101, 102, 1995 WL 789963 (1995).

Two coworkers testified that they had not authorized Schillinger to represent their concerns to management. However, the Board's finding that Schillinger's proposed action would have been concerted is not undermined by the fact no employee specifically endorsed Schillinger's proposal to raise employees' grievances to State representatives. See NLRB v. Parr Lance Ambulance Serv., 723 F.2d 575, 579 (7th Cir.1983). Therefore, the testimony of Schillinger's two coworkers is not necessarily determinative on the...