Employment Law Daily NLRB: Discipline unlawfully motivated by ULP charges, not driver’s failure to secure gas cylinders
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Monday, June 18, 2018

NLRB: Discipline unlawfully motivated by ULP charges, not driver’s failure to secure gas cylinders

By Ronald Miller, J.D.

An employer issued a written warning to an employee for having filed unfair labor practice charges with the Board, not because he drove his truck with improperly secured gas cylinders in the trailer, ruled the NLRB in a 2-1 decision. The Board agreed with an administrative law judge that the evidence as a whole showed that the reasons offered by the employer for issuing the written warning, as opposed to an oral warning, were a pretextual attempt to mask its unlawful motivation. Accordingly, the employer failed to show that it would have taken the same action absent the employee filing charges with the Board. Member Kaplan filed separate dissenting opinion (Airgas USA, LLC, June 13, 2018).

The employee was a commercial driver for a company that sold and distributed industrial gases. Its drivers drove trucks with attached trailers to transport cylinders of gases to and from the employer’s customers. The drivers were generally responsible for properly securing the cylinders in the trailers so they would not rattle or shift during transport. On August 6, 2015, the employer issued the employee a written warning for driving his truck with improperly secured gas cylinders in the trailer. However, the General Counsel alleged that the real motivation for issuing the warning was the employee’s past filing of unfair labor practice charges.

In May, just a few months prior to his August discipline, the employee filed an unfair labor practice charge alleging that the employer had threatened to change employees’ terms and conditions of employment because the employee had filed grievances and filed charges with the Board. In July, the employee filed another charge alleging that the employer had given him a three-day suspension in June in retaliation for engaging in protected union activities and for filing Board charges.

Unsecured cylinders. On August 6, while the regional director was investigating both of those charges, the employer gave the employee the written warning based on an incident that happened on August 3. After the employee had returned to the employer’s facility after spending the morning collecting gas cylinders, an operations manager noticed that the cylinders were tilting and improperly secured. The operations manager did not speak with the employee, but instead returned to the office and grabbed his camera to take pictures documenting the unsecured load. He made no attempt to inspect the cylinders, secure them, or direct the employee to do so. Thereafter, the operations manager did observe the employee climb onto the back of his truck, secure the leaning cylinders and drive off.

In the August disciplinary meeting, the employer gave the employee the written warning for having improperly secured gas cylinders in his trailer. The employee argued that he should only have been given a verbal warning. During a grievance meeting, a union representative asked that the discipline be lowered to a verbal warning because it was the employee’s first offense. The employer responded that it was not the employee’s first offense. It also refused because of the severity of the event.

Employer animus. In this instance, the Board agreed with the administrative law judge that the written warning was unlawful. The ALJ found that the employee’s filing of unfair labor practice charges was protected activity, and that the employer knew about the filings. Therefore, the ALJ appropriately focused her analysis on whether the General Counsel showed that the employer had animus towards the employee for filing Board charges. Here, the law judge found that the evidence as a whole demonstrated that the employer was motivated by its disdain for the employee’s repeated charge filings when it issued the written warning. She further found that the reasons the employer gave for the discipline were pretextual.

In finding unlawful motivation, the ALJ first found that the timing of the warning was suspicious. It occurred during an ongoing Board investigation of allegations that the employer had unlawfully threatened employee with more serious discipline because of the employee’s unfair labor practice, and grievance filings, and shortly after company officials gave affidavits before the Board. Second, the operations manager’s actions contradicted his purported concern for safety—the reason given for issuing the warning. Third, evidence of disparate treatment also demonstrated animus. At least two other employees received an oral counseling for more serious violations. Fourth, the employer’s claim that the written warning was the next step of progressive discipline was rejected. Finally, the operations manager failed to conduct a meaningful investigation into the violation.

Accordingly, the Board agreed with the ALJ that the evidence as a whole showed that the reasons offered by the employer for issuing a written warning, as opposed to an oral warning, were a pretextual attempt to mask its unlawful motivation. Thus, the employer failed to show that it would have taken the same action absent the employee filing charges with the Board.

Dissent. In a separate dissenting opinion, Member Kaplan argued that the ALJ’s findings were not supported by the record evidence, but that the record supported the employer’s contention that its sole motivation for the warning was the employee’s failure to properly secure gas cylinders in his truck—a Department of Transportation violation. The dissent asserted that the contrary finding was based on unwarranted inferences and the subjective judgment regarding what ALJ and majority believed the employer’s safety procedures and disciplinary policy should be.

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