Labor & Employment Law Daily Written warning unlawfully motivated by employee’s ULP charges, not failure to secure gas cylinders
Tuesday, February 26, 2019

Written warning unlawfully motivated by employee’s ULP charges, not failure to secure gas cylinders

By Ronald Miller, J.D.

An employer issued a written warning to an employee for having filed unfair labor practice charges with the NLRB, not because he drove his truck with improperly secured gas cylinders in the truck bed.

Substantial evidence on the record supported the conclusions of the NLRB that an employer used written discipline to retaliate against an employee for previously filing unfair labor practice charges against it, ruled the Sixth Circuit. The evidence supported the conclusions that the actions of a plant operations manager were not calculated to rectify a safety problem and that his testimony about the level of safety concern posed was not credible. Accordingly, the appeals court granted enforcement of the Board’s decision finding that the issuance of the written warning, as opposed to an oral warning, was a pretextual attempt to mask the employer’s unlawful motivation (Airgas USA, LLC v. NLRB, February 21, 2019, Stranch, J.).

The employee was a truck driver at the employer’s Cincinnati plant. Prior to 2015, he maintained good safety and driving records, with no documented violations of employer or Department of Transportation rules. However, his record suffered in the spring and summer of 2015—a period during which the employee filed a series of unlawful labor practice charges against the employer. In a meeting in April 2015, the plant operations manager purportedly changed disciplinary policies to eliminate verbal warnings. The employee filed a charge with the NLRB alleging the change was made in retaliation for an earlier charge he had filed.

In late June, the employer suspended the employee for three days for completing DOT paperwork after clocking out. The operations manager described the violation as severe, dishonest, and potentially a terminable offense. The employee alleged the suspension was further retaliation and filed a charge on July 7.

Unsecured cylinders. On August 3, the employee pulled into the yard at the plant with a load of gas cylinders in his truck. A 12-pack of cylinders were housed in a cradle—a cage bolted to keep cylinders in place. An additional four cylinders were attached to the truck frame with two straps. The employee was responsible for securing the four cylinders that were not in a cradle. The employer’s driver manual instructed that “cylinders must be strapped, chained or secured to the vehicle so that they do no move or rattle.” The cylinders on the employee’s truck were not nested properly, and leaned against the truck railing.

The operations manager observed the employee as he pulled in. According to the written warning issued a week later, the plant manager heard rattling when the employee pulled into the yard. When he went to investigate the noise, he saw that the employee also had a pallet on the truck that was not properly strapped, which was causing the noise. Thereafter, the plant manager returned to the office and grabbed his camera to take pictures documenting the unsecured load. He made no attempt to inspect the cylinders, secure them, or direct the employee to do so. He did observe the employee climb onto the back of his truck, secure the leaning cylinders and drive off.

The next day, the operations manager emailed the pictures to the employer’s driver trainer. In response to the manager’s inquiry, the driver trainer acknowledged that the storage of the cylinders was unacceptable. On August 6, the employee was issued a written warning letter. The employee filed a grievance that day, arguing that the written warning was excessive. The employer denied the request to reduce the discipline to a verbal warning. Thereafter, the employee filed a charge with the NLRB.

The Board agreed with an administrative law judge that the evidence as a whole showed that the reasons offered by the employer for issuing the written warning, as opposed to an oral warning, were a pretextual attempt to mask its unlawful motivation. The employer petitioned for review, and the Board filed a cross-application for enforcement.

Discrimination claim. At issue in this case was the level of discipline leveled against the employee for a safety violation. The Sixth Circuit observed that it analyzed claims of discrimination in violation of the NLRA under the burden-shifting framework articulated in Wright Line, and adopted by the Supreme Court in NLRB v. Transportation Management Corp. To establish a prima facie case of discrimination under Wright Line, “the General Counsel must demonstrate that (1) the employee was engaged in protected activity; (2) that the employer knew of the employee’s protected activity; and (3) that the employer acted as it did on the basis of anti-union animus.”

Employer animus. In this instance, the employer did not dispute the Board’s conclusion that the first two factors were satisfied. The employee filed two charges in the months leading up to the August written warning.

Here, the appeals court examined the strands of evidence relied upon by the Board in affirming the ALJ’s finding of anti-union animus. First, the written warning issued just after the incident did not mention falling or tilting cylinders, instead stating only that the operations manager “heard rattling.” Considering the inconsistencies among the manager’s oral and written accounts regarding his version of events versus the employee’s, the Board’s conclusion that the manager was not credible fell well within “the bounds of reason.”

Credibility determination. This credibility determination also supported the Board’s conclusion that the operations manager’s actions contradicted his purported concern for safety. Although the warning letter gave safety concerns as the reason for its issuance, the manager had two opportunities to instruct the employee to fix the problem, but he said nothing. By neglecting to speak with the employee, the manager left open the possibility that he would not have fixed the safety problem.

The employer also failed to conduct a meaningful investigation into the incident. Physical investigation was necessary to confirm the source of the rattling noise. However, when the operations manager viewed the bed of the employee’s truck, he did not check the cradle for loose cylinders that could have caused the noise. Additionally, the Board found a retaliatory motive in the email exchange between the operations manager and driver trainer where the manager twice failed to answer the trainer regarding the identity of the driver. Thus, it was not unreasonable for the Board to conclude that this exchange was more consistent with a focus on catching the employee than on improving safety.

Temporal proximity. The Board also considered the timing of the events. The employee received the written warning just under a month after he filed a charge with the Board. Disciplining the employee soon after a critical event—the filing of charges—supported the Board’s conclusion that the temporal proximity between the protected activity and the discipline was evidence of animus.

Disparate treatment. Finally, the Board considered “evidence of disparate treatment” with regard to the written warning. The evidence contained only one instance of discipline for failing to secure cylinders. However, the Board pointed to evidence of two employees who received verbal warnings for serious violations of safety regulations. It was within the Board’s authority to consider the difference in treatment in attempting to discern anti-union animus. Thus, the Board’s finding of pretext was supported by substantial evidence. The Board’s application for enforcement was granted.

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