Employment Law Daily NLRB: GC didn’t prove union activity motivated discharge, even though insubordination was possibly pretext
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Wednesday, August 7, 2019

NLRB: GC didn’t prove union activity motivated discharge, even though insubordination was possibly pretext

By Ronald Miller, J.D.

The GC did not prove union animus motivated her discharge, even though the Board found that the employer’s stated reason for her termination—insubordination—was pretextual in that other employees were disciplined more leniently.

An employee who failed to comply with a superior’s directive to deliver microwaves to an assembly line was lawfully discharged, even though the Board found that the employer’s stated reason—insubordination—was pretextual, ruled a divided three-member panel of the NLRB, in a 2-1 decision. Because the General Counsel failed to show that the employer committed a contemporaneous unfair labor practice and there was nothing suspicious in the employer’s investigation of the employee’s insubordinate refusal and failure to deliver microwaves to the production line, the Board concluded that the GC failed to satisfy his burden to prove that her union activity was a motivating factor in her discharge. Member McFerran filed a separate dissenting opinion (Electrolux Home Products, Inc., August 2, 2019).

The employer manufactures gas and electric ovens at its facility. In 2015, the union first attempted to organize the employer’s facility but lost. It initiated another organizing drive in 2016, and, on October 5, 2016, it was certified as the bargaining representative of unit employees. Just three weeks after certification, the parties reached an interim agreement regarding employee discipline.

The employee worked in the employer’s materials department for assembly line 2; its function was to ensure that the assembly line was stocked with materials needed to assemble ovens. She was disciplined twice during her tenure. In November 2013, the employee was suspended for three days for improperly clocking in to work, and in December 2016, she verbally counseled for failing to properly scan inventory.

Insubordination. The employee was discharged for insubordination on May 5, 2017, for her failure on April 28 to comply with a superior’s directive to ensure that microwaves were delivered to the production line. On the morning of April 28, two forklift drivers assigned to assembly line 2 during the employee’s shift were off work on FMLA leave. The materials department supervisor approached the employee and asked her to personally deliver microwaves to the assembly line. She did not do so.

Later that morning, the employee was approached by the supervisor for assembly line 1 and told that materials were needed for that assembly line. The employee was not responsible for assembly line 1; her department supervisor did not instruct her to deliver materials to line 1; and she did not deliver the materials to line 1. Subsequently, production of line 2, and possibly line 1 stopped, but for reasons unrelated to the employee’s refusal to deliver the microwaves.

The department supervisor complained to HR about the employee’s insubordinate failure to deliver microwaves to line 2. An investigation was conducted and the employee was asked to submit a written statement. During a meeting with HR, the union steward advised the employee against submitting a written statement. Disciplinary action was not taken at the meeting, and the employee returned to work.

Discharge. On May 1, the employer’s lead negotiator emailed the union’s business manager to inform him that the employee was being investigated for insubordination. The business manager informed the employee she was being considered for termination. On May 4, the employee submitted her incident statement. On May 5, the employee was informed that she was being terminated.

Union activities. Long before she was discharged, the employee assisted in union organizing efforts. During both 2015 and 2016, she distributed union authorization cards, handed out union flyers, and wore a pro-union t-shirt. In September 2016, she attempted to speak at a mandatory meeting held by the employer, but was not permitted to respond to employer statements. She was also one of six employees who served on the union’s bargaining committee. On several occasions during her employment, the employee raised concerns about terms and conditions of employment.

Pretext. Applying Wright Line, the administrative law judge found that the General Counsel satisfied his burden of proving the employee’s union activity motivated the employer’s decision to discharge her. According to the ALJ, the employer harbored animus towards the employee’s union activities based on the confrontation between the employee and the managers who ran the mandatory meeting. Moreover, the law judge noted that the employer had imposed lesser discipline on other employees who had been deemed guilty of insubordination. Thus, the ALJ found the employer’s stated reason for discharging the employee pretextual.

Others treated more leniently. The Board agreed with the ALJ that the evidence established that the employer generally treated other insubordinate employees more leniently, and that this tended to show that the employer’s stated reason for discharging her was pretextual. Although the employer’s proffered justification for discharging the employee instead of imposing a lesser discipline was pretext, the Board found that the General Counsel failed to satisfy his burden to proving that her union activity was a motivating factor in her discharge.

Pretext alone not enough. The Board found no basis to infer that the employer discharged the employee because of her union activities, other than the finding of pretext derived from evidence of disparate treatment. The General Counsel did not show that the employer committed any contemporaneous unfair labor practices, and the Board found nothing suspicious in the employer’s investigation of the employee’s insubordinate failure and refusal to deliver microwaves to the production line.

Union animus. Contrary to the law judge, the Board found that the exchange between the employee and managers at the September 2016 meeting did not demonstrate unlawful motivation. It noted that it is lawful for an employer to conduct a captive-audience meeting to persuade employees not to unionize and refused to allow others to express opposing views. Accordingly, while it may have been rude to tell the employee to “shut up,” that incident, by itself or in conjunction with evidence of disparate treatment did not establish that the employer harbored union animus.

Partial dissent. In a separate opinion dissenting in part, Member McFerran, pointed out that under longstanding Board precedent, the ALJ’s finding that the employer’s sole stated reason for the employee’s discharge was pretextual would logically preclude any conclusion that the employer acted lawfully in discharging the employee. She argued that the majority erred in agreeing with the ALJ that the employer’s reason for the discharge was pretextual but nonetheless concluding that it was not motivated by antiunion animus. McFerran argued that this puzzling outcome seems to open the door for employers to lie to the Board and get away with it.

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