By Brandi O. Brown, J.D. An employer's alleged good-faith belief that circumstances justified disciplinary action against a union steward could not help it meet its burden on rebuttal where it deviated from its standard practice or policy in imposing that discipline, the D.C. Circuit explained. The appeals court denied the employer’s petition for review of an NLRB order finding that it violated NLRA Sections 8(a)(1) and 8(a)(3) by threatening to find a reason to fire the steward and subsequently making good on that threat. The NLRB's cross-application for enforcement was granted (Fort Dearborn Co. v. NLRB, April 12, 2016, Rogers, J.). “We’ re watching you.” The union and employer were negotiating a new collective bargaining agreement and, consistent with the union bargaining committee’s recommendation, employees voted to reject the employer’s contract proposal. During a meeting between management and union representatives, the employer's senior vice president for operations accused the union and its agents of using company copy machines to produce a flyer urging employees to reject the proposal, and putting flyers on car windshields in the company parking lot. According to the union steward, the senior VP complained of the union "circus" and told him “we’re watching you.” In other words, the D.C. Circuit explained, he issued the steward “a ‘watch, catch, fire’ threat.” Two months later, the steward, who had an almost spotless disciplinary record, was suspended and then fired for allegedly bringing an unauthorized person into the plant and then failing to “respond truthfully” to questions about the event. The NLRB found the threat violated Section 8(a)(1) and the suspension and termination violated Section 8(a)(3). The employer petitioned the D.C. Circuit for review and the Board cross-applied for enforcement of its order. Suspension and discharge. The Board's finding of pretext with regards to the steward’s suspension and discharge were supported by substantial evidence, the D.C. Circuit held. The employer argued primarily that the Board misapplied the test established in Wright Line and ignored evidence supporting the employer's good-faith belief that the circumstances justified the discipline. The employer argued that in Sutter East Bay, the D.C. Circuit explained that the proper focus in the Wright Line inquiry was not on what the employee actually did but on what the employer in good faith believed he had done. The appeals court rejected that argument, explaining that the employer could meet its burden of rebutting the General Counsel’s prima facie case only if it could demonstrate "that it parceled out discipline as it normally would when confronted with the same kind of employee misconduct that its managers reasonably believed had occurred." Otherwise, the employer's good-faith belief was of "little aid" to the employer. The Board's determination that the steward’s union activity was a motivating factor in his treatment was supported by substantial evidence. There was ample evidence that the company VP issued the steward a “watch, catch, and fire” threat. Also, the employer had never enforced the policies it relied upon in disciplining the steward. In fact, evidence showed that despite the employer's policies regarding unauthorized visitors, the plant doors were often open, and there was no sign-in procedure. Moreover, the employer had a progressive discipline policy but did not apply that policy to the steward, in spite of his nearly spotless record. Substantial evidence also supported the Board's finding that the employer failed to show it would have suspended and discharged the steward regardless of his union activity. In addition to the fact that it did not usually enforce the policies that the steward was alleged to have breached, and did not adhere to its own progressive discipline policy, the employer’s stated reasons for firing the steward were undermined by evidence that many people—including drivers, food deliverymen, and family members—were often in and out of the plant during the shift in question. Threatening steward. The Board’s finding that the employer interfered with the steward’s rights under the Act when the company VP threatened him was supported by substantial record evidence as well. The VP uttered his threat during the first bargaining session after learning that the union rejected management's contract offer. Another employee present at the meeting testified that the VP was "very upset" about the vote and that the VP had told the steward: “[W]e are watching you, we’re going to catch you, we will fire you and 70 people will be laughing at you.” The steward's own contemporaneous notes from the meeting included the words "Watching you—fired." Even the VP admitted that he was "frustrated" at the meeting. Moreover, both the steward and the other employee testified that the VP accused the union of misuse of the employer's property, and the steward testified that the VP complained of the union "circus." Furthermore, the appeals court added, it did not matter whether or not the steward's protected activity was the source of the VP's frustration; the proper focus of the inquiry under Section 8(a)(1) was the effect of the threat on the listener.
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