Filing Grievances Against Employer Who Fired Employee for Alleged Poor Production

In Ebasco Services, Inc. (1970) 181 NLRB 768, some 40 employees were discharged for alleged poor production (not a matter which in itself implicates the NLRA). Most of the employees filed grievances, and a formal hearing on the grievances was scheduled. The official entity established to conduct the hearing requested the appearance of several foremen. However, their superintendent told the foremen that if they attended the hearing they would no longer be supervisors, preventing them from working without a foreman being present. In other words, they would lose status and would receive a reduction in their hourly rate. The employer disputed that the demotion of the supervisors interfered with the employees' statutory rights to have all pertinent testimony presented before the board under the contract grievance procedure. The NLRB disagreed, affirming and adopting the decision of the trial examiner. That decision stated: "It is well settled that discharge of a supervisor for testifying in proceedings under the Act is a coercion of nonsupervisory employees in violation of section 8(a)(1), where the employees knew he gave testimony or the circumstances show they had good reason to believe they might suffer a similar fate if they gave testimony, for such conduct has a tendency to obstruct and impede the Board in its investigative and trial procedures, and to deprive employees of their right to seek vindication by Board process of their statutory rights. General Counsel argues that the same rule should apply where employees resort to contract grievance procedures to vindicate their rights under such contract, and supervisors take it on themselves to appear before tribunals created under those procedures. This argument has merit, for the Act itself recognizes and favors employees' right to use, and actual use of, contract grievance procedures to settle labor disputes, and so do the courts. The Board has specifically protected employees from employer interference with their right to resort to such procedures under contracts, as well as procedures before outside tribunals, to enforce contract rights, on the theory that the filing of claims by employees in either instance was a form of implementation of the collective bargaining agreement and thus an extension of the concerted activity which gave rise to that agreement. . . . Therefore, it appears to be no more than a reasonable extension of the above principle and Board policy to say that employees have a corollary right to a full and fair hearing on their grievances under contract procedures which must likewise be protected from interference or limitation." ( Ebasco Services, Inc., supra, 181 NLRB 768, 769-770, fns. omitted.) The employer's "order for the supervisors not to attend, followed by the announcement of their demotion before the employees' representative, and climaxed by their actual demotion, was conduct which had a substantial tendency to inhibit employees in the exercise of one of their important rights under the contract, protected by the Act, but which on the facts in this record had no countervailing importance in maintaining continuance of operations at the project." ( Id. at p. 770.)