Labor & Employment Law Daily NLRB finding upheld: Mechanic was fired for union activity, not gender-based slur
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Monday, June 15, 2020

NLRB finding upheld: Mechanic was fired for union activity, not gender-based slur

By Kathleen Kapusta, J.D.

Although a supervisor accused the employee, and union organizer, of calling her a b***h, none of the interviewed witnesses corroborated her account.

Substantial evidence supported an NLRB order finding an auto parts manufacturer and supplier violated NLRA Section 8(a)(3) when it discharged a maintenance mechanic, purportedly for saying “f**k you, b***h” to a supervisor who had ordered him to fix a machine, just weeks after the company learned he was behind a new union organizing effort. Granting the Board’s cross-application for enforcement of its order, and denying the employer’s petition for review, the Sixth Circuit, in an unpublished opinion, noted evidence that at the time of the alleged incident, the employee was not supposed to be on the production floor, the witnesses who were interviewed did not hear him utter the offensive slur, and many of those same witnesses indicated that the supervisor was the “aggressor” (Challenge Manufacturing Co., LLC v. NLRB, June 9, 2020, Cole, R.G., Jr., unpublished).

Although employees at the employer’s eight manufacturing plants throughout the country were historically not unionized, the employee, in 2013 and 2015, initiated unsuccessful union campaigns at the plant where he worked. He not only contacted the union, he wore union paraphernalia, talked to hundreds of employees, and signed a letter to management expressing a desire to be unionized.

Neutrality agreement. Despite having actively opposed those campaigns, the employer, in 2016, signed a neutrality agreement with the union in which it agreed to provide the union upon request with a list of employees at any of its plants, allow union organizers access to its plants, and recognize the union at any plant where a majority of employees had signed authorization cards. For its part, the union agreed that while a collective bargaining agreement was being ratified at a previously organized facility, it would not initiate a campaign at any of the other plants.

Third organizing effort. In April 2017, the employee initiated an organizing campaign at the same time the employer and union were in the process of ratifying a bargaining agreement at another plant. When company management learned that the employee and a supervisor were involved in union activities, they met with the supervisor, asked him to identify other union activists, and suspended him for five days. The supervisor then warned the employee to “watch his back.”

Altercations. Two weeks later, the employee, who had arrived 30 minutes early for his shift, was asked several times by a supervisor to fix a malfunctioning machine. Because he was not allowed on the production floor before the start of his shift, he refused. At some point, the supervisor yelled at the employee and another coworker to fix the machine “right now.” When they refused, she yelled “You’ll do as I say, when I say.” In response, the employee told her to “go see your f*****g 2nd shift maintenance crew” and to get the “f**k” out of his face.” As she started to walk away, the supervisor claimed the employee said “F**k you, b***h.”

Termination. None of the witnesses interviewed by the HR manager during the subsequent investigation heard the employee say “f**k you, b***h,” and most indicated that the supervisor was the aggressor in the confrontation. However, a welder, whom HR did not interview, stated in writing that he did hear the employee use the derogatory slur. Based on the HR manager’s recommendation, the VP of operations, who found the supervisor credible, fired the employee.

Board proceedings. He filed charges with the Board alleging discriminatory discharge and interference with his rights to engage in protected union activity. An administrative law judge found that animus toward the employee’s union activities was a motivating factor in his discharge and that the employer failed to show he would have been discharged even absent his union activities. The NLRB largely adopted the ALJ’s findings and conclusions.

On appeal, the employer challenged only the Board’s finding that it violated Section 8(a)(3) by discharging the employee. Because it did not contest the finding that, by threatening the employee with reprisals for engaging in protected union activity and creating the impression that activity was under surveillance, it violated Section 8(a)(1), the court granted enforcement of that portion of the order.

Wrong standard? The employer first argued that the Board held the General Counsel to the wrong standard because it did not explicitly require the General Counsel to establish a causal connection between anti-union animus and the employee’s discharge. But the Board, in its 2019 Tschiggfrie Props., Ltd., decision, clarified that the Wright Line framework “is inherently a causation test,” the court explained, and identifying a causal nexus as a separate element would be “superfluous.” Moreover, the court pointed out, the ALJ found that the timing of the employee’s discharge and the evidence of disparate treatment supported “an inference of anti-union animus connected to the discharge.”

Anti-union animus. The Board also erred, the employer asserted, in failing to require the General Counsel to prove directly that the ultimate decisionmaker, the VP, acted with anti-union animus. But the General Counsel was not required to do so, said the court, noting anti-union motive may be inferred from circumstantial evidence.

Overlooked the neutrality agreement? Nor did the Board overlook the neutrality agreement, as the employer claimed. Rather, in finding that the General Counsel met its initial burden, the Board relied partly on the employer’s Section 8(a)(1) violation which, the ALJ found, followed from management’s “apparent misunderstanding” that the neutrality agreement guaranteed a respite from the union organizing activities in which the employee was engaging.

Reasonable inference. The employer also argued that the evidence upon which the Board relied did not reasonably give rise to an inference of an unlawful motive. Disagreeing, the court pointed out that the Board relied on the timing of the employee’s discharge, which was two or three weeks after the company learned of his 2017 organizing efforts; the employer’s section 8(a)(1) violation; and the fact the employee was terminated even though he had no prior discipline of any kind while other employees who acted insubordinately or used profanity were not terminated. This record, said the court, reasonably permitted an inference of anti-union animus.

Affirmative defense. The employer, however, contended that it would have fired the employee even without any anti-union animus, as he admittedly refused to follow a supervisor’s orders and used profanity and it had a good-faith belief he uttered the gender-based slur. The Board’s analysis, it argued, was flawed because it focused on whether the employee uttered the slur rather than on whether the employer had a good-faith belief that he did.

Unconvincing. But the Board did not hold the employer to that standard, the court explained. “Instead of simply determining that [the employee] never uttered the alleged gender-based slur, the Board determined that ‘[the VP] did not have a reasonable basis for concluding [the employee] had done so.’” Not only did the supervisor admit she did not see who made the alleged comment, none of the five witnesses interviewed by the HR manager corroborated her claim that it was the employee. Further, the VP of operations interviewed no witnesses and relied on the HR manager’s investigation and recommendation. Thus, said the court, the employer’s assertion that the Board could only consider the VP’s belief specifically was “unconvincing.”

Substantial evidence. Finally, said the court, there was reasonable support in the record for the Board’s finding. The incident upon which the company relied to terminate the employee occurred when he was not being paid and was not supposed to be on the production floor; none of the interviewed witnesses heard him utter the alleged slur; many of those witnesses indicated the supervisor was the aggressor in the confrontation; and the employer disciplined other workers less severely for insubordination and disrespectful language. Accordingly, substantial evidence supported the Board’s finding of a Section 8(a)(3) violation.

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