By Tulay Turan, J.D.
In a rare rejection of an NLRB finding based simply on a lack of substantial evidence, the D.C. Circuit found there was insufficient evidence to support the Board’s acceptance of an ALJ’s finding that an employer’s discharge of an employee for lying during an investigation was a pretext to rid the company of a prominent union supporter. Further, the appeals court rejected the Board’s alternative finding that even if the employee did lie, it was within the context of an inquiry into protected activity, and therefore immune. Thus, the court granted the employer’s petition for review and denied enforcement of the NLRB’s order (Cellco Partnership, dba Verizon Wireless v. NLRB, June 19, 2018, Silberman, L.).
In May 2015, the employee had a falling out with her supervisor at a Verizon store. She sought advice via texts and phone calls from a prominent union supporter who worked at another store. The employee asked whether she should call the District Manager for permission to leave the store that day. The union supporter agreed and said she was in touch with human resources. Although the District Manager had not given her permission to leave, based on a text from the union supporter telling her she could, the employee clocked out without permission from anyone in management.
During Verizon’s investigation of the matter, the employee said the union supporter mentioned human resources and gave her permission to leave work via text messages. The union supporter, however, denied saying she gave permission and also said they had only spoken by phone and had not exchanged any substantive texts. Both employees declined to share their personal text messages with Verizon.
In mid-June, Verizon, believing the union supporter, decided to terminate the employee for dishonesty during the investigation. After the union supporter heard about the decision, she turned over the text messages, which showed that the employee’s account was true. Verizon turned its inquiry to the union supporter’s truthfulness and, in August, terminated her for lying during the investigation. The employee received a final written warning, but was not terminated. Later, the union supporter texted the employee’s supervisor that “these people are on a witch hunt.” He responded that he was sure they were and that “they definitely have a hit list . . .”
On August 25, the union filed a charge with the Board, and the General Counsel issued a complaint. Significant evidentiary disputes occurred during the hearing. Ultimately, the ALJ held that Verizon had violated Section 8(a)(3) in firing the union supporter. The Board affirmed the ALJ, though it disclaimed reliance on several of his findings in a footnote. Verizon’s subsequent petition argued the finding that the employee’s discharge was motivated by anti-union animus was not supported by substantial evidence.
“Hit list” text rejected. The appeals court agreed with Verizon that there was a lack of substantial evidence that the discharge was motivated by anti-union animus, rejecting three pieces of evidence the ALJ and the Board relied upon in finding animus. First, the reference to a figurative “hit list” in texts between the union supporter and the supervisor was not probative of anti-union animus where the supervisor expressly testified the list wasn’t “union or non-union.” The court also noted it has held that a “stray comment by a junior supervisor who plays no part in a decision to discharge an employee, without more, is of little significance in measuring evidence of anti-union animus.” It was undisputed the supervisor was not involved in any way in the decision to discharge the union supporter.
Terminated employee caused delay. Second, the court rejected the ALJ’s reliance on the length and breadth of the investigation into the May events. The company proceeded carefully because it knew the employee was active in the union and that her discharge would be controversial. The first delay was for the meeting in accordance with the company’s agreement with the union to discuss potential discipline. Then it was not until the union supporter revealed the texts at the August 6 meeting that the company’s focus turned to her truthfulness during the investigation. “In short, it was [the union supporter] herself who was responsible for the extensive delay,” the court wrote.
Other employees fired for dishonesty. Finally, the court addressed the ALJ’s evaluation of Verizon’s treatment of other employees in similar situations. The ALJ did not find the company inconsistently treated instances of employee dishonesty during investigations; rather, he “simply put himself in the hypothetical position of management to determine whether he thought he would have concluded differently about whether the underlying dishonesty existed.”
Verizon produced evidence that eight employees had been fired for dishonesty during investigations, along with unrebutted testimony that they would not have been discharged if they had not lied. The ALJ determined that Verizon’s treatment of the union supporter was out of line with its treatment of these other employees, suggesting that she was a special target. But the appeals court disagreed, finding it was clear Verizon made a legitimate business judgment that an employee lying during an investigation is a serious threat to management of the enterprise. “The Board has no warrant to challenge that decision,” the court wrote. In fact, Verizon, in consistently following its own policy, had determined to discharge the employee who had no known particular union sympathies, before the union supporter revealed the evidence that vindicated her.
No interference with protected activity. The appeals court also rejected the ALJ’s alternative finding that even if the union supporter lied during the investigation, her discharge violated Section 8(a)(3) because Verizon’s questions unlawfully pried into protected activity. Verizon was entitled to inquire into the reason an employee walked off the job without management permission. There was no indication Verizon was doing any more than conducting a valid inquiry with no motive to pry or interfere with protected activities. In fact, the employee was relying on her conversation with the union supporter as a defense, rather than trying to protect it from disclosure to management.
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