Timekeeping Systems, Inc.

Timekeeping Systems, Inc. (Timekeeping) (defendant), a small manufacturer of data-collection equipment, employed Larry Leinweber (plaintiff) as a software engineer. Timekeeping’s chief operational officer, Barry Markwitz, sent an email to all of Timekeeping’s employees in which he sought voluntary input on proposed changes to the company’s vacation policy. Markwitz’s email stated that the proposed changes would result in more days off annually than the existing system. Leinweber emailed Markwitz, arguing that the new plan included the same number of days off and would afford employees less flexibility than the old plan. The next day, Leinweber emailed Markwitz again to notify Markwitz of a minor error in his calculations. Markwitz did not reply. A couple of days later, Tom Dutton, another member of the engineering team, emailed the team members, including Leinweber, effusively praising the new plan. Leinweber responded to Dutton and shared his view that the plan was not advantageous to employees. Leinweber also sent a long email to Markwitz and all employees in which he explained his perspective in a provocative and sarcastic tone. Timekeeping ultimately discharged Leinweber because of the disrespectful tone of the email and because he had sent the email to all employees instead of raising his concerns with Markwitz. Leinweber filed a charge with the National Labor Relations Board, alleging that he was discharged because of protected concerted activities in violation of § 8(a)(1) of the National Labor Relations Act (NLRA). The administrative-law judge (ALJ) found that Leinweber’s discharge violated the NLRA, and Timekeeping appealed.