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Actions towards one employee due to anti-union motive, but not the other

By Ronald Miller, J.D.

The Sixth Circuit affirmed an injunction that gave a union supporter her old job back after concluding that a regional director presented sufficient evidence to support the theory that her new job was more physically demanding than her previous position. On the other hand, the appeals court found clear error in the district court’s failure to remove a second employee from the injunction after he was discharged for committing a safety violation following a written final warning. Further, there was no showing that the employee engaged in protected activity or that the employer knew about those activities to infer that his termination was motivated by anti-union sentiment (McKinney v. Ozburn-Hessey Logistics, LLC, November 9, 2017, Suhrheinrich, R.).

Since its employees first began organizing efforts in 2009, the employer has consistently tried to prevent unionization efforts, often through unlawful means. Despite the obstacles, the employees successfully unionized on May 24, 2013, and in 2016, the D.C. Circuit ordered the employer to begin the collective bargaining process.

Pro-union activity by two employees. In June 2013, the employer reassigned a female employee, Smith, to a new job. Smith was an active union supporter who regularly discussed union business with coworkers, distributed union materials, tried to convince coworkers to sign union cards, and wore pro-union apparel to work. A male employee, Jones, was terminated from his position as a janitor. He was less outspoken about the union than Smith. He discussed the union with his pro-union colleagues, and on at least one occasion raised issues about the union in a meeting with management. Additionally, Jones was involved in an altercation between a manager and a pro-union employee. The other employee had been placing pro-union literature in a breakroom when the manager ordered him to stop. Jones witnessed the incident and was later called into the manager’s office to discuss it. Otherwise, Jones was very quiet about his feelings towards unionization.

Prior to his termination, Jones had some problems with safety violations. In June 2013, he received a final written warning for operating his forklift without a seatbelt. In October, the employer began investigating Jones for stepping away from a forklift while it was still running. After this incident, the employee was terminated. The union reported that after June 2013, ten employees requested their union cards back, and interest in the union dropped over the next year.

Administrative complaint. An NLRB regional director later filed an administrative complaint alleging that the employer committed unfair labor practices in an attempt to stifle union support. She also sought and received temporary injunctive relief from a district court returning Smith to her old job, and reinstating Jones’ employment.

Meanwhile, the regional director’s complaint worked its way through the NLRB’s administrative process. On April 28, 2015, an administrative law judge issued a decision rejecting the unfair labor practice complaints related to Smith and Jones. The ALJ found that Smith’s reassignment was not adverse, and that Jones’ firing could not have been for anti-union reasons. Following the ALJ’s decision, the employer asked the district court to remove Smith and Jones from the injunction. The district court declined to do so.

Jurisdiction. On appeal, the employer claimed that the injunction was invalid at the outset due to a jurisdictional deficiency. It also argued that the district court erred in declining to remove Smith and Jones from the injunction. Before the district court, the employer moved to dismiss this case. It argued that the district court lacked jurisdiction because the regional director’s administrative complaint was invalid. Specifically, the employer asserted that the regional director was unlawfully “appointed” to run the Memphis region by an NLRB later declared to have only two legitimate members—one shy of a quorum.

In reality, the regional director was not “appointed” to a new position. Rather, she was already serving as regional director for the New Orleans region, and the Board decided to consolidate her region with the Memphis region, leaving her in charge of both. Moreover, the newly confirmed Board has since ratified the decision to consolidate the regions, which ratified the regional director’s actions. At any rate, when the regional director filed her complaint against the employer on April 20, 2014, she did so while operating under the umbrella of the new Board. Thus, the administrative complaint was valid.

Injunction. The court next turned to whether the district court erred in refusing to remove Smith and Jones from the injunction. To support the notion that the employer acted unlawfully when it reassigned Smith, the Board had to present a legal theory and sufficient facts to satisfy that theory. The district court concluded that the Board met its burden, finding that Smith was open about her “avid” union support and that her reassignment to a more physically difficult job supported this claim.

The Sixth Circuit agreed that the Board had presented sufficient evidence to support the theory that Smith’s new job was more physically demanding than her previous job. The evidence tended to show that as compared to a picker, the employee’s job as an auditor required less movement and physical exertion, and was under less time pressure. The employee was also an asthma sufferer. The district court did not erroneously conclude that Smith’s new job was more physically onerous than her previous position.

With regard to Jones, the appeals court found that the district court’s rationale for granting injunctive relief was much weaker. The district court entirely failed to explain the reasoning behind the decision to grant Jones relief. Jones had received a final written warning for a safety infraction in June 2013. The written warning indicated that any further violation of any company policy would lead to additional discipline, up to and including termination. As for this final infraction, Jones was away from his forklift so long that another employee was able to take the key without Jones noticing.

Moreover, the court found little support in the record for an inference that Jones’s termination was motivated by anti-union sentiment where there was no showing that he engaged in protected activity or that the employer knew about those activities. Therefore, the appeals court vacated the injunction as it related to Jones.