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Steve Nelson: Co-op May Need To Add a Review Process

A great deal of attention has been given the Co-op Food Stores brouhaha. I can’t recall a local issue that inspired more comment during my 23 full and part-time years in the Upper Valley (all of them as a Co-op member).

The turmoil arose as a result of the termination of two employees, Dan King and John Boutin. New Hampshire is an “employment at-will” state, meaning employees may be fired with or without cause at any time. Supporters of King and Boutin cite their apparently salutary work, thereby suggesting that the firings were unfair and arbitrary. Valley News columnist Jim Kenyon suggested that the men might have been fired for attempting to organize a union. The Co-op denied any such retaliation, but has provided no other justification for the firings.

While most of the public outcry has been critical of the Co-op management and board, some Forum contributors have taken the other side. So what sense can be made of this whole mess? As one who has dealt with similar issues, perhaps I can offer a helpful, balanced perspective.

Several points of fact: The Co-op’s status as an at-will employer may or may not hold up under scrutiny. If the Co-op has policies that describe termination processes or “cause” for termination, employees may claim wrongful discharge because the employer has implied that it does not fire “at-will.” At this point, the dismissed employees have not sought legal redress.

“At-will” does not protect an employer who has violated the civil rights of an employee; for example, a termination based on race, gender, religion, pregnancy, age or any other protected classification. There is no evidence made public that either terminated employee has filed or is contemplating filing such a claim.

As to the possibility of the firings being in retaliation for union organizing activity: Contrary to assertions made in the Valley News, the National Labor Relations Board has not been defanged. Having just gone through the defense of a claim of retaliation for union organizing by an employee, I can provide first-hand testimony. Although my organization prevailed against this claim, the process was far from perfunctory. It was lengthy, thorough and expensive. In fact, a very experienced New York lawyer told me that the NLRB is taking such claims very seriously, partly because the entire nation is in such an anti-labor, anti-union era. If there is any merit to the claim of firing as retaliation, the Co-op employees would have a vigorous ally in the NLRB. It therefore seems fair to assume that there is no merit to that charge, at least as of now.

The Co-op management and board have also acted with consistent professionalism throughout this public airing of personnel matters. It is professionally and legally prudent to remain silent on any employment actions. While aggrieved employees or their supporters may offer facts or opinions with impunity, the Co-op would comment at significant peril. Even if there was compelling justification for these terminations, the Co-op must remain silent unless it wants to invite a lawsuit. Such silence does not prove by inference that the terminations were arbitrary or unfair.

This is a common dilemma for an employer. Because of the professional requirement to maintain discretion, accusations of unfairness, abuse or retaliation simply hang unanswered in the air. I have been in the position of maintaining silence even when termination was due to accusations of sexual abuse. While nothing like this is at play in the Co-op situation, you might imagine how hard it was to hold my tongue when accused of unfair treatment of the employee! I use this example only to accentuate the likely frustrating position of the management and board.

I do have a suggestion. In my school, the termination of a teacher can be a particularly controversial and difficult matter. Rather than resting on “trust me” or “I can’t talk about it,” concerns about personnel decisions can be brought to a council of faculty representatives. While not a union committee, and with no legal power, this council may examine the processes around any termination to assess whether the school acted within both the letter and the spirit of our policies. This is entirely voluntary on the part of the school’s leadership, but is intended to build confidence and transparency in the hard decisions that must sometimes be made.

In 16 years this process has been engaged a half dozen times. In all but one case the faculty council affirmed that the letter and spirit of our policies and practices had indeed been followed. In the one case, I reinstated the teacher, even though not legally bound to do so. In all the other cases, the review of the council was sufficient to put all rumors and controversy to rest without ever publicly disclosing any details leading to the termination.

If they hope to restore member and public confidence, the Co-op might consider putting a similar mechanism in place.

Steve Nelson lives in Sharon and New York City, where he is the head of the Calhoun School, a private school.