Labor & Employment Law Daily Employee’s refusal to operate machine due to earlier safety concerns was protected concerted activity
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Tuesday, July 9, 2019

Employee’s refusal to operate machine due to earlier safety concerns was protected concerted activity

By Marjorie Johnson, J.D.

The employee’s refusal to follow an order to operate the machine in a manner inconsistent with current written instructions, and which he believed risked explosion, was a “logical outgrowth” of concerns he and his coworker had raised earlier that day.

An oil refinery employee’s refusal to operate a machine based on his safety fears was a “logical outgrowth” of his morning discussions with a coworker about the same assignment and concerns and therefore constituted protected concerted activity, the Eighth Circuit ruled. Enforcing an NLRB order finding that the employer unlawfully suspended him in violation of the NLRA, the appeals court also found multiple indications of discriminatory motive, including that the employer “abruptly indicated its hostility” to his behavior by sending him home after his repeated refusal to work, relied almost solely on supervisors’ accounts in its internal investigation, and gave inconsistent reasons for disciplining him (St. Paul Park Refining Co., LLC dba Western Refining v. NLRB, July 8, 2019, Shepherd, B.).

Policies encouraged safety. Some of the refinery’s workers were represented by a union, including the employee, who had served as a union steward for several years. Both the collective bargaining agreement and the employee handbook required workers to notify supervisors if they believed work conditions were unsafe and help remedy dangerous conditions. Workers were also required to follow written procedures and any changes had to be documented on a “step-change” form. A “safety stop” policy also gave workers the authority to stop a job due to safety concerns and discuss mitigation measures with supervisors. Company documents stated that such concerns could be raised without fear of retaliation.

Coworker raises concern. On the morning at issue, the employee’s coworker was assigned the task of restarting a certain machine, which required injecting hydrochloric acid from pressurized cylinders to clear out water and rust. A few weeks earlier, the employer had implemented a new technique for injecting the acid that involved heating the cylinders with steam. However, the written procedure had not been updated.

New form required removal of other cylinders. The coworker asked the employee about the safety of the new steam-heating method, and the employee expressed his discomfort. They voiced their concerns to an engineer, who prepared a step-change form that included an instruction that other hydrochloric acid cylinders should not be in the same area as the one that would be heated.

Complains about dangerous, undocumented procedure. After the task was reassigned to the employee that afternoon, he expressed concern that other cylinders were near the cylinder to be heated. Though his supervisor told him to mitigate the hazard by placing insulation blankets over those cylinders, he insisted the written procedure called for removing them from the area. Fearing the supervisor’s suggestion was unsafe and risked explosion, he asked that the safety department to review that suggestion and began filling out a safety-stop form.

The supervisor and superintendent told him to fill out the form later, but he repeated his safety concerns and urged that if the restart process had changed to allow insulation blankets, the step-change form needed to be updated. He also said that he felt he was being pressured to perform the task despite his safety concerns. After he and the supervisor began speaking in loud voices, he was sent home.

Internal investigation. HR began an investigation and requested statements from the two superiors. The supervisor wrote that the employee had refused to do assigned work and behaved insubordinately while the superintendent said he was insubordinate by refusing to discuss mitigation. She also named several witnesses, including the coworker, and modified her statement three days later to add that the employee was loud and pointed his finger at the supervisor.

Suspended. The employer’s investigation relied almost entirely on supervisors’ accounts and declined to interview fellow unit workers, including the coworker originally assigned to the task. Though the employee denied raising his voice or pointing his finger at the supervisor, the employer ultimately placed him on a 10-day unpaid suspension, gave him a final written warning, and later denied him his quarterly bonus.

Board proceedings. The employee filed unfair labor practice charges alleging that the employer retaliated against him by disciplining him and denied his bonus to discourage his union activities. The administrative law judge (ALJ) held a hearing and found in his favor, relying heavily on witness credibility. In particular, the ALJ found that his consistent testimony was believable while the supervisor’s testimony was hesitant and inconsistent with the superintendent’s account. The Board adopted the ALJ’s decision and the employer appealed.

Protected concerted activity. Finding that the employee engaged in protected concerted activity, the Eighth Circuit agreed with the Board’s finding that his refusal to work on the machine in the afternoon was a “logical outgrowth” of his morning discussions with his coworker about the same assignment and safety concerns. Notably, the ALJ had credited his testimony that following the morning conversations, where he and the coworker both expressed concerns about the safety of the restart procedure, he repeatedly called for a safety stop.

Anti-union animus. The ALJ also did not err in finding that anti-union animus motivated the employer’s decision to discipline him. Finding “multiple indications of discriminatory motive,” the Eighth Circuit noted that the employer “abruptly indicated its hostility” to the employee’s behavior by sending him home after his repeated refusal to work. Based on the ALJ’s finding that he did not engage in insubordinate behavior, the company’s use of that reasoning was thus pretextual. This conclusion was supported by the internal investigation, which relied almost entirely on supervisors’ accounts. The company also gave inconsistent reasons for disciplining him, first describing the reason as his refusal to work, then his refusal to discuss mitigation, and finally his belligerent behavior, which wasn’t included in the superintendent’s original statement.

Finally, the employer failed to prove that it would have taken the same action absent the protected activity. Though it needed to demonstrate that it had acted on a reasonable belief the employee committed misconduct, the ALJ did not credit its allegation that he had even misbehaved. Considering the employer’s “evolving stories and inadequate investigation,” this case did not involve “extraordinary circumstances” justifying reversal of the ALJ’s credibility findings.

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