By Ronald Miller, J.D.
Section 8(a)(3) outlaws punishing the workforce as a whole for its union activity just as strongly as it outlaws punishing particular union supporters.
Substantial record evidence supported the NLRB’s ruling that an automobile dealership violated Sections 8(a)(3) and 8(a)(1) of the NLRA by terminating one employee and laying off another to punish its service technicians for voting to unionize, ruled the D.C. Circuit in a 2-1 decision. The Board properly focused its analysis on the employer’s discriminatory intent to punish its employees as a group for their known decision to unionize, rather than on the employer’s knowledge of the targeted employees’ individual views about the union. Judge Neomi Rao filed a separate opinion concurring in part and dissenting in part (Napleton 1050, Inc. dba Napleton Cadillac of Libertyville v. NLRB, October 6, 2020, Millett, P.).
Nonunion dealership purchased. The employer owns and operates a group of at least 14 automobile dealerships. In June 2016, it brought an existing dealership in Libertyville, Illinois. At the time it acquired this dealership, it was not unionized, but six of the dealerships owned by the employer were unionized. For collective bargaining for those dealerships, the employer was a member of a management-side bargaining association comprised of more than 100 dealerships in the Chicago area. After acquiring the new dealership, the employer retained most of its employees, including 12 service technicians.
Union campaign. This case arises out of the events surrounding a successful union drive mounted by service technicians in 2016 and a strike involving the technicians in August 2017. In early August 2016, the union began a unionization drive at the dealership. During the campaign, the employees neither openly supported nor discussed the union at work. The dealership’s management opposed unionization, holding “three captive-audience luncheon meetings” to “discourage employees from voting for the Union” and sending employees a lengthy letter urging them to vote against the union.
One of the service technicians was on medical leave and receiving workers’ compensation at the time the dealership was acquired. Following the ownership change, he visited the dealership every month to provide a work status report from his doctor. During one visit, he discussed with a manager when he might be able to come back to work. That same month, he attended a union organizing meeting and told the manager about his attendance. In a separate meeting, the manager again brought up the union campaign.
Despite management’s efforts, the union won the representation election on October 18, 2016. When the technician stopped by the dealership shortly after the election with an update from his doctor, the manager expressed his displeasure at the union victory. Two days later, the employer sent the technician a letter terminating his employment. About that same time, the employer began the process of laying off a second employee, allegedly because of insufficient “productivity.”
Strike activity. Just over a month after the unionization election, the employer and the union began bargaining for a labor agreement. Approximately 10 months later, by August 2017, the union concluded that negotiations had stalled. Meanwhile, on August 1, 2017, the union began a strike against the dealership association, including the employer’s unionized locations.
Prior to the strike against the association, the employer convened a meeting of its employees and told them that they had an opportunity to take advantage of the strike, explaining that work could be funneled from nearby dealerships. Nevertheless, employees joined the strike. In response, the employer hand-delivered a letter to the picketing employees advising them of the consequences of the strike, including removal of their tool boxes. On the third day of the strike, the employer rolled the employees’ toolboxes outside the fenced gates of the dealership; two toolboxes were damaged during a rainstorm. The employer did not require striking employees at its six other dealerships to remove their toolboxes, however.
Retaliation for union activity. An NLRB administrative law judge found that the employer had committed several unfair labor practices, including terminating the first employee and laying off the second employee in retaliation for the employees voting to unionize. The ALJ also found that the employer created the impression of surveilling the employees’ union activities, removed the employees’ toolboxes in retaliation for the strike, and implicitly threatened that employees would lose their jobs for striking.
The Board upheld the ALJ’s finding that the employer violated Section 8(a)(1) by telling the second employee that he was laid off because employees voted to unionize. It reversed the ALJ as to the implied threat of job loss but affirmed all the other violations, and it required the employer to reimburse the employees for the cost of towing their toolboxes and for rain damage to two of the toolboxes. The employer petitioned for review, and the Board cross-applied for enforcement.
Employer motive. To establish a violation of Section 8(a)(3), the Board had to find that the employer “encourage[d] or discourage[d] membership in” the union in a particular way: “by discrimination in regard to hire or tenure of employment or any term or condition of employment.”
The central question in this case was the employer’s motive for firing the first employee and laying off the second employee—that is, whether those decisions were intended to punish or discriminate against union activity. It turned on the first prong of the Board’s Wright Line test—whether the General Counsel made a prima facie showing that the employer’s overt anti-union animus motivated the employees’ discharge and layoff. Here, the D.C. Circuit determined that the record supported the Board’s conclusion that such a showing was made.
Workforce as a whole. The Board has long held that “general retaliation by an employer against the workforce can discourage the exercise of [S]ection 7 self-organization and collective bargaining rights just as effectively as adverse action taken against only known union supporters.”
Here, the Board properly found a prima facie case that the employer violated the Act by discharging one employee and laying off a second employee “in retaliation for the unit employees’ decision to unionize.” Courts and the Board have long recognized that Section 8(a)(3) outlaws punishing the workforce as a whole for its union activity just as strongly as it outlaws punishing particular union supporters.
Individualized knowledge not always necessary. While the employer’s awareness of a targeted employee’s union activity is the most common way of proving an employer’s “actual discriminatory intent,” such individualized knowledge is not always necessary for a violation to be found. As long as the employer is taking adverse action against an employee or employees for the specific purpose of punishing or discouraging known union activity in the workplace, the employer “cannot cleanse an impure heart with ignorance of individual employee sentiments.”
Applying the Wright Line framework, the Board reasonably concluded that the employer violated Sections 8(a)(3) and 8(a)(1) by terminating the two employees to punish the unit employees’ decision to vote for union representation. Thus, the Board’s cross-application for enforcement was granted.
Partial concurrence and partial dissent. Judge Rao dissented from that portion of the majority opinion that found that the employer’s discharge of two employees after its workforce voted to unionize constituted discrimination. She argued that an employer’s knowledge of an employee’s union activity, or a proxy for employer knowledge, is an essential element of a discrimination charge under the NLRA. Rao suggested that the NLRB General Counsel did not attempt to demonstrate that the employer had knowledge that the two employees participated in union activity, so that the Board’s finding of discrimination departed from its announced standards. Because the Board neither acknowledged nor explained this departure, Rao would vacate the discrimination finding.
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