Although supervisors generally are not covered by the National Labor Relations Act (NLRA), which protects “employees” from unfair labor practices, that Act is deemed to have been violated if a supervisor’s discharge results from his refusal to commit an unfair labor practice. Recently, the 6th U.S. Circuit Court of Appeals upheld the dismissal of a supervisor’s federal court complaint on the basis of lack of jurisdiction, holding that because the individual claimed to have been fired for refusing to take action against pro-union employees, the issue could only be properly reviewed by the National Labor Relations Board (NLRB). Lewis v. Whirlpool Corporation, 6th Cir., No. 09-4231, Jan. 12, 2011.
Timothy Lewis worked for Whirlpool for 30 years, from 1977 until 2007, in its non-union facility in Marion, Ohio. In 2004, certain Whirlpool employees began to wear pro-union shirts, and to meet with union representatives. Lewis – a supervisory employee at the time – alleges that he was instructed by a company vice president to “build a case” and to terminate two of the pro-union employees. He refused to do so.
In March 2007, Lewis was accused of “badging” an employee. (Badging refers to a procedure during which a supervisor clocks-in an employee using the time badge of a different employee.) After an investigation, Lewis was fired. He then filed a charge with the NLRB, alleging that he was fired because of his refusal to “commit unfair labor practices” in 2004. In November 2007, Lewis received a letter from an NLRB field examiner, stating that his charge against Whirlpool was “without merit,” and informing Lewis that the regional Director was prepared to dismiss the charge for that lack of merit. The letter gave to Lewis the option of withdrawing the charge voluntarily, which Lewis did.
In March, 2009, Lewis filed a lawsuit against Whirlpool for wrongful discharge claiming that he was fired “in violation of public policy” after he refused to terminate the pro-union employees in 2004. Whirlpool filed a motion to dismiss the complaint on the basis that the claim was preempted by the NLRA. The district court agreed, and granted the motion to dismiss.
Lewis appealed, arguing that as a supervisor, he was not subject to the NLRA and, therefore, that he could not have gone forward with his claim in that venue. However, the Sixth Circuit pointed out the available exception, in which a supervisor may bring a claim under the NLRA when he is disciplined and/or terminated for refusing to commit unfair labor practices. In response, Lewis attempted to portray the November 2007 letter from the NLRB as a statement that the Board did not have jurisdiction over him, based on his supervisory role. However, because that letter actually addressed the substance of Lewis’ claim, finding it to be without merit, and letting him know that it would be dismissed unless withdrawn, the Sixth Circuit refused to allow Lewis to support his claim with that letter.
While the employer/company was the successful party in this matter, the lesson for employers is really between the lines here: while the prevailing view is that supervisors are not entitled to the rights offered to “employees” under the NLRA, this case points out the statutory exception. Although supervisors are not explicitly covered by the NLRA, the actions of a supervisor who is refusing to commit an unfair labor practice are clearly protected. Employers cannot take any action that would interfere with, restrain or coerce a protected employee in the exercise of his or her rights under the NLRA. Taking such action through a supervisor actually compounds the violation by creating a legal cause of action in favor of the supervisor.