We don’t have a union. Why is the attorney talking about the NLRA?

Published by Colleen Ness

Jun 3, 2021

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Case Analysis – Real Estate
Tuesday morning, the Chief Executive Officer for Jackson Miller Properties inspected her daily mail. In it was a letter from Attorney Malik Davis, a well-known local lawyer specializing in employment law. He was writing on behalf of two clients: Mr. Matt Evans and Ms. Jennifer Dawson. He has requested a meeting to see if satisfactory arrangements can be made for these two terminated employees before they file charges with the NLRB, saying they were terminated unlawfully. Section 8(a)1 will be cited for the violation.* In preparation for the meeting, the CEO asks the HR Director for a briefing on each case. She wants to know:
1) We don’t have a union. Why is the attorney talking about the NLRA?
2) The two workers bad-mouthed the company on Facebook, right? How does that relate to the NLRA? What are the legal criteria in the NLRA?
3) If the NLRB pursues this, what will be the company’s legal argument(s) to justify each termination?
4) What will each employee argue?
5) Are we likely to win? What should I tell the attorney when I meet with him?
*After reviewing the facts, explain what the company’s decision should be for each case. Also explain any remedies that are needed. Be sure to identify the legal concepts involved and use details from the case to show evidence in support of your position. Please limit your analysis to 2-3 double-spaced pages, total for both cases. Use APA for in-text citations and end references.
*This is a simplification of how it would be filed, but it should help you do the analysis.
Employee Handbook
Section 5: Employment at Will
Employment is on an at-will basis. A written contract, signed by the CEO of the company, is needed to change that status.
Section 8: Courtesy Policy
Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the company.
Employee Performance Record
Disciplinary Report
Employee Name: Mr. Matt Evans
Employee ID: 47958
Position: Sales Representative
1. Date: 2/22/19 2. Supervisor: Mr. Jack Bolden
3. Type of Disciplinary Action:
(1) _____Verbal Warning
(2) _____Written Warning
(3) _____Suspension
(4) __x__ Termination
4. Occurrence:
(1) __x___ Initial
(2) _____ Repeat
5. Related Provisions: Employee Handbook — Sections 5 (at-will) and 8 (courtesy policy) – See attached.
6. Related Evidence: Facebook postings — (See attached.)
7. Description of Behavior: Mr. Evans posted disparaging comments about the company on Facebook. He mocked the provisions of the promotional sales event held on 2/16/19.
8. Actions
Date: 2/21/19, 4:30 p.m. – Disciplinary interview in HR office
Participants: Mr. Evans, employee; Mr. Bolden, supervisor; Ms. Buthel, HR Director
Ms. Buthel showed the Facebook postings to Mr. Evans and confirmed that he posted them. Mr. Evans argued that they were on his personal account and “not anyone’s business.” Mr. Bolden reminded him that disparaging remarks are against company policy, to which Mr. Evans said, “So the truth is offensive, right?” Mr. Bolden replied that the provisions are not Mr. Evans’ responsibility. Ms. Buthel asked Mr. Evans if there was anything more he would like to say about the postings. He declined.
Date: 2/22/19, 9:30 a.m. — Ms. Buthel informed Mr. Evans in person and in writing that his employment was terminated, effective immediately.
Receipt of Employee Handbook
I have received the Employee Handbook. I understand that management may change it and that it is my responsibility to stay current with the provisions.
I understand that I am an at-will employee and that no company communication shall change that status. The company may terminate me without reason at any time, and I can terminate my employment at any time. I understand that only the CEO has authority to change the employment-at-will status. Such a change must be in writing and officially signed by the company.
____Matt Evans_____________________
Employee’s Name in Print
____Matt Evans___________
Employee’s Signature
_____3/6/17__________________
Date Signed by Employee
TO BE PLACED IN EMPLOYEE’S PERSONNEL FILE
Facebook Postings
The title of the 2/16/19 posting is “Why my commission is so low!” On the first page, Matt posted:
How can I earn a decent living when they “promote” an upscale development like Seaside Estates with paper plates, plastic forks, and bottled water!” The units are really nice—wouldn’t mind having one myself, but the brochures look as cheap as our faded, write-your-own-name business cards. (They don’t print our names because people don’t stay.) When I told them this in a staff meeting, my boss flashed me another dirty look. Other sales reps echoed the concern. I asked how we can get the PR materials changed, but Warden Bolden just snarled, “I think there is an opening in the marketing department, Mr. Evans. Or, maybe you’d like selling for Rockland Enterprises instead.” I didn’t get any leads from this event. I’ve about had it with this place. It sucks!
Following his post were comments from family and friends, a few of whom are co-workers. “Sounds awful!” “Hope it gets better!” “Maybe Bolden is the one who needs to go!” “I’m with you on that!”
Employee Performance Record
Disciplinary Report
Employee Name: Ms. Jennifer Dawson
Employee ID: 36820
Position: Sales Representative
9. Date: 3/29/19 10. Supervisor: Mr. Jack Bolden
11. Type of Disciplinary Action:
(1) _____ Verbal Warning
(2) _____ Written Warning
(3) _____Suspension
(4) __x__ Termination
12. Occurrence:
(1) __x___ Initial
(3) _____ Repeat
13. Related Provisions: Employee Handbook — Sections 5 (at-will) and 8 (courtesy policy) – See attached.
14. Related Evidence: Facebook postings — (See attached.)
15. Description of Behavior: Ms. Dawson posted disparaging comments about another division of the company on Facebook. She mocked the accident at the Bridgestone site, which handles commercial buildings, on 3/15/19.
16. Actions
Date: 3/27/19, 4:30 p.m. – Disciplinary interview in HR office
Participants: Ms. Dawson, employee; Mr. Bolden, supervisor; Ms. Buthel, HR Director
Ms. Buthel showed the Facebook postings to Ms. Dawson and confirmed that she posted them. Ms. Dawson argued that they were on her personal account and did not represent an official statement. Mr. Bolden reminded her that disparaging remarks are against company policy. Further, he reported that he had had several negative calls from competitors and suppliers about the postings. Ms. Dawson apologized. Ms. Buthel asked Ms. Dawson if there was anything more she would like to say about the postings. She declined.
Date: 3/29/19, 9:30 a.m. — Ms. Buthel informed Ms. Dawson in person and in writing that her employment was terminated, effective immediately.
Receipt of Employee Handbook
I have received the Employee Handbook. I understand that management may change it and that it is my responsibility to stay current with the provisions.
I understand that I am an at-will employee and that no company communication shall change that status. The company may terminate me without reason at any time, and I can terminate my employment at any time. I understand that only the CEO has authority to change the employment-at-will status. Such a change must be in writing and officially signed by the company.
____Jennifer Dawson_____________________
Employee’s Name in Print
____Jennifer Dawson___________
Employee’s Signature
_____8/6/16__________________
Date Signed by Employee
TO BE PLACED IN EMPLOYEE’S PERSONNEL FILE
Facebook Postings
The title of the 3/16/19 posting is: “A slam dunk!” On the first page, Jennifer posted:
Did you hear the newest way to impress a customer? The Sales Manager at JM – Bridgestone Commercial Division was escorting a prospective client for the vacant shop in the complex east of town. He took the buyer to the shop by golf cart, part of the quaint atmosphere in that community. When he rounded the pond in front of the store, he took the curve too fast and–plop! He threw his client into the mud! Her briefcase fastballed to the water’s edge, hovered a second, then drown out of sight.
Following her post were comments from family, friends, and colleagues from previous jobs in the industry. “I hope she wasn’t hurt.” “What happened to Speedy?” “Isn’t that just standard operating procedure for that crew?” “Remind me never to ride with him!”

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