Employment Law Daily Anti-union animus was employer’s only motive in firing crane operators
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Monday, July 15, 2019

Anti-union animus was employer’s only motive in firing crane operators

By Ronald Miller, J.D.

The business owner’s statements that he would continue to fire workers until “all this union stuff” stops supported the conclusion that anti-union animus was the motive for the discharge of six employees.

Firing union crane operators to persuade a union local to be more reasonable in the face of a weak market, and because the employer didn’t want to deal with newly aggressive union leadership, constituted unlawful discharge due to union activities on the workers’ behalf, ruled the Sixth Circuit. The discharged employees credibly testified that the company owner said he would “keep letting guys go until I get to the guy I want unless this stuff stops.” Thus, the appeals court concluded that the employer had one motive for firing the employees—and that one motive was anti-union animus (Erickson Trucking Service, Inc. v. NLRB, July 10, 2019, Sutton, J.).

Longstanding union contractor. The employer offers cranes for rent, sending cranes and crane operators to construction sites across the country. It has used unionized labor since 1923, and employs 20 union members to operate forklifts and cranes. According to the employer, it was the only unionized company of its kind in western Michigan, and it has been “struggling” with declining demand for smaller cranes for a couple of decades. The employer wanted to invest in larger, specialized cranes with higher rental fees and wider demand.

Relationship with union sours. The employer’s strong relationship with the union local soured in 2015. For the first time, the union insisted on jurisdictional rigidity—that only members of its local, not the company’s other unions, perform crane-operator work. Then the union’s new business representative requested a mid-term contract change that would increase wages by 30 to 40 percent, corresponding to the rate recently negotiated with another area union. The employer was contractually bound to pay another union’s rates when operators worked in their jurisdiction, but the employer refused to extend the higher rate to the local’s jurisdiction. In response, the local threatened to stop referring union members for the employer’s regular temporary-labor needs.

Additionally in 2015, crane operators began seeking the union business representative’s help with payroll mix-ups rather than resolving them with the employer. The employer did not take kindly to the business representative’s sudden involvement in frequent payroll adjustments. The owner refused to discuss matters with the union representative and told employees to “quit talking to Brandon [the union business representative] because he’s going to get you in trouble.” The local then filed its first-ever grievance and unfair labor practice charge against the employer. The employer eventually agreed to allow employees to seek the local’s help with wages and settled the charge in March 2016.

In mid-2016, the employer discovered that the business representative was approaching its customers and encouraging them to hire through the union’s referral process rather than contracting with the employer. The employer cut off all contact with the business representative.

Discharges. Following an embattled year with the local’s new leadership, the employer fired six union members in mid-2016 as they completed projects. (Before 2016, the employer had never fired a crane operator.) All six employees had regularly operated a 40- or 60-ton crane or performed lower-level operator work without an assigned crane. The employer told the fired workers it felt cornered by a weak market and it intended to sell all of its smallest cranes because work was “drying up” for small cranes.

Board charges. The local filed an unfair labor practice charge, claiming that the employer unlawfully threatened employees based on the union’s advocacy, and unlawfully discharged them for the same reason. Each of the employees testified about the employer’s explanation. One employee reported that the owner said that “all this union stuff” had “been in the works for a while” and there were “lots of unhappy people around here,” and he saw no reason to continue employing unhappy people. Another employee was told that the employer was discontinuing small cranes and he “had to play by the union rules” and “Brandon is relentless and no one seems to care about that.” The owner also stated that the layoffs “could be reversed” if the workers would “get the Union to back off,” and that he would “keep letting guys go until I get to the guy I want unless this stuff stops.”

The Board upheld the administrative law judge’s determination that the workers’ recollections were more credible than the employer’s. The employer petitioned for review, contesting only the unlawful discharge claim.

“All this union stuff.” The NLRB General Counsel had to establish, as an initial matter, a threshold case that animus toward the union or an employee’s protected conduct caused the discharges. In view of the employer’s statements pairing its conduct in laying off employees and selling its smaller cranes with it having to deal with a newly aggressive union leadership, the Sixth Circuit found it relatively straightforward to say that the General Counsel made a threshold showing that the discharges were unlawful.

Although it was not established that some of the employees engaged in union activity, the General Counsel need not show that each discharged employee engaged in protected activity where the employer fired a group in order to discourage union activity in the workforce generally, the appeals court noted. The ALJ reasonably concluded that the employer fired the operators “due not to any particular union activity on their parts” but instead “to send a message to the Union.” The parties litigated that theory before the Board, and substantial evidence supported the Board’s conclusion.

Employer justification. The appeals court also rejected the employer’s challenges to the ALJ’s conclusion that its explanation for the discharges—the greater profitability of large cranes, the declining demand for small cranes, and the market-readiness of these operators’ cranes—was pretextual. The employees’ credited testimony about the employer’s contemporaneous explanation for their discharge undermined the employer’s version of events.

Even crediting the employer’s testimony that he happened to decide in the spring of 2016 to exit the small crane market for unrelated reasons, it didn’t necessarily follow that he needed to terminate the operators. Many larger cranes require a second operator, known as an oiler. Two of the fired employees were oilers. The other four were certified to operate larger cranes, and simply needed more experience.

Moreover, the employer’s records indicated a dramatic increase in temporary hires immediately after the discharges, often for tasks the fired workers usually performed. Thus, the ALJ reasonably concluded that the employer’s justification was pretextual.

Accordingly, the appeals court granted the Board’s petition for enforcement.

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