Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer unlawfully discharged an employee because he brought group complaint about policy change, (Sep 17, 2026)

By Ronald Miller, J.D.

The Board noted that the employer tolerated the employee’s alleged poor performance up until the time he engaged in protected concerted activity that undermined its position.

An employer violated Section 8(a)(1) of the NLRA by discharging an employee because he engaged in protected concerted activity by “bringing truly group complaints to the attention of management” regarding the employer’s introduction of a new “API Change Policy” at a meeting attended by employees and management, ruled a three-member panel of the NLRB. The Board agreed with an administrative law judge that the employee acted for mutual aid and protection because the API Change Policy was a term and condition of employment (Snowflake, Inc., 375 N.L.R.B. No. 39 (Sept. 16, 2026)).

The employer, Snowflake, Inc., is in the business of housing electronic information for its customers. One of its main products is “Snowsight,” a web interface through which customers can run queries, manage users, create virtual warehouses, create and modify data-bases, and share data with other Snowflake accounts. Snowflake employs approximately 850 engineers.

Acquisitions. In March 2019, Snowflake acquired a smaller company called Numeracy, whose main product was a user interface that enabled data analysts to connect to data warehouses. Numeracy’s product was later incorporated as a key component to Snowsight.

In July 2019, Snowflake acquired another small company called Stride Software, Inc. The employee in this dispute was a cofounder and the chief technology officer of Stride. There were approximately 16 key employees from Stride who came to work for Snowflake, including the cofounders of Stride. Because the employee was an essential part of the acquisition due to his technical expertise, he was given the position of Senior Director—Engineering and was richly compensated by Snowflake.

Shortly after the Stride acquisition, the employee was assigned as director of the Apps Team. From the start, he was ineffectual as a director owing to his poor communication style. It was mutually agreed that he would step down from his position as a director and transition to the position of “independent contributor,” a nonsupervisory, principal software engineer position, with no employees reporting to him.

Former Stride engineers confided in the employee that they felt that the former Numeracy leaders were subjecting their proposed software code to more rigorous review than what the former Numeracy engineers were facing. They feared that this double standard would negatively impact their quarterly evaluations and bonuses. The employee assured them that he would speak to management on their behalf.

API change proposal. On July 22, Snowflake announced the company’s new API Change proposal. Under the new system, engineers seeking to make certain changes or additions to APIs would need to submit their proposed code for approval. Any change to the user interface which could affect a customer was subject to this new review process. Some staff members found the broad, loosely defined scope of the proposal vague or confusing.

On August 7, various managers and staff members attended a weekly Zoom meeting about the progress of projects. The employee raised four concerns at the meeting based on his conversations with coworkers. From the perspective of management, the employee’s advocacy took over the meeting so that there was no time to discuss the other agenda items. Other employees also spoke up in support of the employee’s speech at the meeting and reiterated the same concerns to management after the meeting. Ultimately, the employee was terminated on September 29.

A complaint alleged that the employee engaged in protected concerted activity, and the employer discharged him on September 29 in retaliation for that activity.

Mutual aid and protection. The Board also agreed with an administrative law judge that the employee acted for mutual aid and protection because the API Change Policy was a term and condition of employment. Management created a strong implication that an employee’s repeated failure to follow the new policy would lead to discipline or discharge. Therefore, the Board rejected the employer’s contention that the policy was a “purely business/entrepreneurial decision” outside the scope of the Act. The API Change Policy directly affected employees’ working conditions, and the employee’s criticisms of the Policy, echoed by his coworkers, were therefore for the purpose of mutual aid and protected by Section 7.

Further, in adopting the ALJ’s finding that the employer had knowledge of the employee’s protected concerted activity, the Board rejected the employer’s contention that senior managers were the key decisionmakers regarding the employee’s discharge. Rather, the employee’s director supervisor was the key decisionmaker, and he attended the August 7 meeting. He also emailed senior managers details of the employee’s allegedly “disruptive” behavior at the meeting when explaining why he should be discharged. Moreover, many supervisors and managers attended the August 7 meeting, and their knowledge of the employee’s protected activity was imputed to the employer.

The Board also adopted the ALJ’s finding that the General Counsel established direct evidence of the employer’s animus based on statements made by its management relying on the employee’s August 7 protected activity as a basis for his discharge.

Finally, the Board affirmed the ALJ’s finding that the employer failed to establish that it would have discharged the employee even in the absence of his protected activity. Some of the employer’s proffered reasons for the discharge—the employee’s performance ratings from prior quarters and his communications with colleagues in an effort to retain his job—were false or not in fact relied upon. The Board found that these reasons were pretextual and therefore could not sustain the employer’s defense burden.

Poor performance. Additionally, the Board rejected the employer’s assertion that documents produced contemporaneously with the employee’s discharge established that his discharge was based solely on his continued poor performance. Although those documents referred to managers taking steps to mitigate the employee’s inter-personal issues and poor teamwork, such vague references did not outweigh management’s specific references to his August 7 protected concerted activity. The Board noted that the employer tolerated the employee’s alleged poor performance up until the time he engaged in protected concerted activity that undermined its position.

Accordingly, the Board affirmed the ALJ’s finding that the employer violated Section 8(a)(1) by discharging the employee because of his August 7 protected concerted activity.

The slip opinion is 375 NLRB No. 39.

Attorneys: Jason P. Wong for General Counsel. Ryan Vann (Cooley) and Keahn Morris (Sheppard Mullin Richter & Hampton) for Snowflake, Inc. Scott Bessler, pro se.

Companies: Snowflake, Inc.

Cases: Labor UnfairLaborPractices AgencyNews