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US Sixth Circuit Court of Appeals Holds That Employee Who Falsely Signed Another Employee's Name On A Letter Engaged In Unprotected Activity

By Harvey Randall, Esq.

US Sixth Circuit Court of Appeals Holds That Employee Who Falsely Signed Another Employee's Name On A Letter Engaged In Unprotected Activity

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

UAW v. NLRB, ___F.3d___(6th Cir. Jan. 28, 2008), illustrates just how narrow the protections of Section 7 are. Section 7, of course, protects the rights of employees to engage in concerted activity for mutual aid and protection. However, that right is not absolute. Egregious employee conduct can render the employee unfit for service. Usually, that involves violence, employee disloyalty or product disparagement.

In UAW, however, this exception has been expanded to encompass a "deliberate falsity and activity that could "destroy the reputation and end the employment of another employee." In this case, an employee, a union supporter, sent a letter criticizing a supervisor at Ogihara America Corporation by falsely indicating that it was sent by another employee who happened not to be a union supporter. The false designation was on the package, not in the letter.

The employer's actions demonstrate their motives. A local Kinko's had a security tape of the employee filling out the FedEx label, but would not release it without a subpoena. The employer had to spend a great deal of time tracking that down, but it did not stop there. Ogihara American Corp., the employer, then filed a defamation action in state court and subpoena's the tape. The opinion implies that the purpose of that lawsuit was to get the subpoena. Actually, the employer only supported the lawsuit filed on behalf of the employee whose name was falsely included on the package.

Why did the employer go through the time and expense of doing this?? Though this answer is obvious, the court did not address it. It suspected the union supporter sent the package falsely and this was a way for the employer to undermine the union. Congratulations Ogihara America Corporation you won round one! However, in the long run Ogihara American Corporation, you may find it more useful to view your employees as partners-not adversaries.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).