The National Labor Relations Board (NLRB) came out with a bunch of year-end decisions, some of which were blogged about by my friend and partner Eric Paltell on this site a couple of weeks ago. Put gently, none of these decisions could be considered “employer-friendly.” Here’s another one.
On its last day before the winter break, the NLRB held, in a 2-1 decision, that an employer committed an unfair labor practice (ULP) by refusing to rescind the resignation of a salesman who said he quit after losing out on a promotion. Cintas Corp. No. 2 , 372 NLRB No. 34 (28-CA-258167, 12/16/22). Instead, the Board majority found that the company fired Benjamin Heidenreich because of his workplace activism. In dissent, member Ring called the majority’s decision “divorced from reality.”
Heidenreich was one of the company’s more productive sales representatives. It was a competitive environment, with a lot of co-worker to co-worker toxicity. In particular, there were issues between Heidenreich and another sales rep, Lindsey Summers.
A third co-worker, Kevin Johnson, privately told Summers that her competition with Heidenreich was “toxic on both ends.” On Heidenreich’s end, Johnson said that Heidenreich was acting like a “tyrant” and was being “sneaky” in competing for the job. On Summers’ end, Johnson told her that she was believed to be the next level manager’s “spy” and warned her to be careful about “snitching.”
While Cintas recognized Heidenreich’s excellent skills as a salesman, it also saw his serious shortcomings. Within the first year of employment Heidenreich was placed on a development plan aimed at improving his emotional intelligence and interpersonal skills.
Beginning in late 2019, Heidenreich and some co-workers met monthly at a cigar club to discuss workplace concerns, including complaints about things like micromanagement and nepotism. The group decided to present these issues at a company “coffee chat” sponsored by HR. Heidenreich counseled two employees who attended the “cigar club” meetings to bring their concerns to management. In March 2020 he raised concerns during a HR coffee chat.
At about the same time, Heidenreich and Summers were competing for a promotion to sales manager. Summers withdrew her application and filed a complaint against Heidenreich, alleging that he was talking badly about her and manipulating incidents to win the job.
Two weeks later, Heidenreich learned that he would not get the promotion. Heidenreich told his manager that he disagreed with the decision not to promote him. He continued that he “knew” he would not be selected because “people in leadership talk” and “this is a tight community.” His manager responded: “That’s part of your problem—you talk to too many people.”
Heidenreich responded by telling a manager he wouldn’t “work underneath whoever you bring in” (i.e., whoever got the sales manager job). He then told another manager he was “done and you will have my resignation.” In a call to HR later that day, however, Heidenreich denied he was resigning. But Cintas “accepted” Heidenreich’s resignation that same day.
So far this sounds the challenges of a dysfunctional workplace, with lots of less than admirable behavior all around. But Heidenreich claimed that Cintas fired him for his protected concerted activity – his workplace activism. That would be a ULP.
An ALJ agreed with Heidenreich, finding that Cintas violated Section 8(a)(1) of the NLRA by threatening Heidenreich with the loss of promotional opportunities because he “talked to too many people,” a euphemism for his protected concerted activities. Two members of the NLRB agreed with the ALJ’s conclusion. In particular, the Board found the temporal proximity between Heidenreich’s voicing workplace concerns and his termination to be strong evidence of the employer’s intent to fire him illegally.
In dissent, member Ring said “[i]f anything, the surrounding facts tend to support an inference that the Respondent accepted Heidenreich’s resignation because, despite his value to the business as a salesman, Heidenreich’s well-documented and unabated shortcomings made him an undesirable employee. His lack of emotional intelligence contributed significantly to creatinga toxic work environment.” All good reasons to end an individual’s employment. Just not to the Board majority.
The takeaway? This case is an important reminder to employers that the NLRB’s protections extend to employees even if there is no union in sight. Here the Board focused on the “cigar club” conversations and the HR “coffee chats” for the evidence that Heidenreich was not acting solely for himself but as a part of concerted action with other employees. Taking action against an employee for what appears to be his concerted activities is a sure way to get the attention of the NLRB. And not in a good way.