Recently, an Administrative Law Judge (ALJ) with the National Labor Relations Board found that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee for informing a co-worker that the co-worker’s job was in jeopardy.

In Component Bar Products, Inc., an employee, Burgess, had been absent for two days. Another employee, Stout, asked a supervisor about Burgess and was told that Burgess did not work at the company anymore. Stout then used his cell phone while at work to call Burgess and tell him that his job was in jeopardy. After receiving Stout’s call, Burgess angrily called the employer. As a result, Stout was discharged for “misconduct,” after which he filed a charge alleging his discharge violated the NLRA.

The ALJ first determined that the employer’s handbook contained unlawful work rules. The rules, which banned “insubordination and other disrespectful conduct” and “boisterous or disruptive activity in the workplace,” both were unlawful because they could reasonably be construed by employees to prohibit activity protected by the NLRA.

In considering Stout’s discharge, the ALJ noted that the NLRA protects employee conduct that is both “concerted” and engaged in for “mutual aid and protection.” In considering whether Stout’s call to Burgess was protected by federal labor law, the ALJ first noted that NLRB precedent holds that an employee’s warning to another employee that the latter’s job is at risk is protected. Applying this precedent, the ALJ determined that Stout’s phone call to Burgess was inherently concerted because it was a discussion about job security and was for mutual aid and protection because Stout, by encouraging Burgess to call in to save his job, was “attempting to protect Burgess’ employment.”

The ALJ then determined that Stout’s discharge pursuant to the employer’s unlawfully overbroad prohibition against disrespectful conduct violated the NLRA. The NLRB’s Double Eagle rule protects an employee from discipline resulting from an unlawful work rule where the employee (1) engaged in protected conduct, or (2) engaged in conduct that otherwise implicates the concerns underlying Section 7 of the Act. The ALJ found that Stout’s conduct met both Double Eagle criteria and, therefore, his discharge was unlawful.

Finally, the ALJ rejected the employer’s other proffered reasons for Stout’s discharge and determined that Stout was disciplined solely because of his protected conversation with Burgess. Therefore, Stout’s discharge violated the NLRA even absent the application of the Double Eagle rule.