Unsuccessful union-busting employer can't overturn NLRB finding of unlawful discipline
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Tuesday, August 23, 2016

Unsuccessful union-busting employer can't overturn NLRB finding of unlawful discipline

By Brandi O. Brown, J.D. In what it described as "the latest chapter in an ongoing labor dispute" between Tennessee warehouse employer Ozburn-Hessey Logistics and the union that finally found a foothold there, the D.C. Circuit upheld several "well-reasoned decisions" by the NLRB related to unfair labor practices and other NLRA violations perpetrated by the employer in its attempts to bust up the fledgling union. In particular, the court spent some time explaining why the Board, and the Administrative Judge below, had correctly determined that the employer had violated the NLRA by issuing a final warning to one worker and firing another worker who were both highly visible proponents of the union. The appeals court denied the employer's petitions for review and granted the Board's cross-applications for enforcement (Ozburn-Hessey Logistics, LLC v. NLRB, August 19, 2016, Pillard, N.). First effort to unionize failed. In 2009, the union began a campaign to organize workers at Ozburn-Hessey's warehouse facilities in Memphis, Tennessee. Although its initial election effort failed, it eventually succeeded in 2011 in winning a representation election, albeit by a narrow margin. This was in spite of the employer's efforts to prevent the union from obtaining a toehold, efforts that included: "threatening, interrogating, and surveilling employees; creating the impression of such surveillance; confiscating union-related materials; urging union supporters to resign; and disciplining two employees because of their pro-union views." Even after losing the vote, the employer adamantly refused to bargain with the union. Second effort succeeds, but two employees pay price. The first failed election resulted in charges being filed against the employer, alleging that it had committed unfair labor practices during the unionization campaign. Those charges resulted in two separate decisions by the NLRB concluding that the employer had violated the NLRA. In the meantime, and before the second, successful election, the employer disciplined two employees who had been instrumental in supporting the union. One employee was issued a final warning, for allegedly violating the employer's anti-harassment policy by using a racial slur against another employee. The other was fired, ostensibly for fabricating a witness statement and for also using a racial slur. On the same day she was fired, the union petitioned the Board for a second election, which resulted in a 165 to 164 vote for the union. Subsequently, the union filed additional unfair labor practice charges against the employer, based on its conduct in the months preceding the second election, including its punishment of the two employees. ALJ and Board find violations. In May 2012, the law judge concluded that the employer had committed the charged violations. Specifically, the ALJ found the employer had violated Section 8(a)(3) of the Act in its actions towards the two employees. The ALJ also resolved pending ballot challenges and objections related to the second election. The Board affirmed the ALJ's rulings, findings, and conclusions and adopted its remedial order, with a single modification. After the U.S. Supreme Court decided NLRB v. Noel Canning, a new panel of the Board did the same. The employer petitioned for review by the D.C. Circuit and the Board cross-applied for enforcement. The two cases were consolidated and the union intervened. Also consolidated were two later cases related to the employer's continued refusal to bargain. Wright Line was properly applied. Noting that it would "address in detail only that arguments that warrant further discussion[,]" the bulk of the appeals court's analysis focused on the discipline meted out to the two pro-union employees. The rest of the Board's decisions were summarily affirmed. Applying the Wright Line test, the appeals court concluded that the Board had not erred with regard to the two employees. The employer, in fact, did not "seriously dispute" the conclusion that union animus had motivated its decisions with regard to disciplining them. Instead, it argued that the Board misapplied the test by denying it a meaningful chance to show that it would have meted out the same discipline even in the absence of the allegedly unlawful motive. However, the appeals court explained that neither the ALJ nor the Board had deviated from Wright Line. Applying the test, the ALJ had concluded that the employer's decisions had been motivated by anti-union animus and it rejected the reasons upon which the employer claimed to have relied. This did not deny the employer a chance to prevent affirmative defenses, as the employer claimed, but rather the ALJ declined to believe that those defenses were the real reasons for the actions. If the Board concludes that the employer’s purported justifications are pretextual, the court explained, then the employer fails to carry its burden as a matter of law. Credibility was key. The ALJ determined (and the Board agreed) that the employee who received a final warning had never used the racial epithet in question, basing its determination on the credibility of the various witnesses who had testified. Although the employer maintained that it was reasonable for it to believe that she had used the word, even if she had not, the court did not agree and neither did the Board. The employer's belief was not reasonable, particularly in light of the fact that one of the witnesses had furnished a signed statement before the employer issued the warning stating that she had not used the epithet as alleged. Moreover, there was plenty of evidence that even if it had been reasonable, the employer did not have a strong track record with regard to disciplining employees who had actually used such epithets. As to the employee who was fired, credibility findings also failed to support the employer's claimed justifications for discharging her. She had asked witnesses to sign a statement regarding a threat allegedly made to her by a supervisor because of her union activities. Although one witness testified that she had asked them to sign a blank sheet of paper (the basis for the fabrication charge), that witness had not been found credible. Several witnesses testified that they felt pressured by the employer in regard to its investigation of the incident. As to the employer's claim that she was also fired because she had used racial slurs, witness credibility and the employer's uneven application of its harassment policy likewise led to a proper pretext determination.

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