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NLRB ruling that firing driver for discussing unsafe conditions was unlawful upheld

By Lorene D. Park, J.D.

Substantial evidence supported the NLRB’s conclusion that an employer unlawfully fired a truck driver for discussing unsafe driving conditions with a coworker over the radio, held the Fifth Circuit in an unpublished opinion. The appeals court did not reach the Board’s additional finding that, regardless of whether handwritten signs posted in the employee’s truck constituted protected activity, the employer’s belief that the activity was protected was also enough to make the termination unlawful (Lou’s Transport, Inc. v. NLRB, April 6, 2016, Keith, D.).

Unsafe driving conditions. The employee was a truck driver at a quarry, and his job consisted of transporting dirt and clay from one end of the quarry to the other. Most of the roads were made of clay, dirt, and stone, and depending on the weather, the roads could become very slippery. Given that the trucks operated in close proximity to drops as much as 200 feet, conditions could become dangerous. The danger was compounded by the company’s alleged practice of replacing flat tires (which happened frequently) with bald tires. Trucks often got stuck, and one truck flipped over.

Expressing concerns or badmouthing employer? At some point, every driver complained to the manager about poor road conditions. In January 2013, the employee conversed with another driver over the company radio about the poor working conditions. The coworker said he had to pay a traffic fine for driving on bad tires that the company refused to fix. The employee responded that he was unable to get new tires until he was pulled over by police and given a ticket. Both expressed that one of the company owners was cheap.

Though the men believed their conversation was private, a sales manager overheard and invited the purportedly “cheap” owner to listen in. The sales manager wanted to fire the employee but they held off. The next day, the sales manager asked the employee and his coworker why they still worked there and said that if they had a problem, they needed “to find a different place to work.” Both received a verbal warning, memorialized in writing, for badmouthing the company and improper language (profanity) on the radio.

Employee displayed signs in truck. The employee then began displaying hand-written signs in his truck regarding working conditions and other matters. One day in February 2013, the drivers collectively refused to continue working due to unsafe road conditions. In a March 25 safety meeting, the employee voiced the drivers’ concerns. Two days later, an operations manager learned about the employee’s signs, checked his truck, and found 16 of them. He informed the sales manager. They both decided “enough’s enough” and fired him the same day.

NLRB’s charge. The Board filed a charge against the employer and an administrative law judge concluded that it violated the NLRA by firing the employee for the radio incident and for the signs. The employer filed exceptions arguing that the employee was not fired for the January 2013 incident and that the signs did not constitute protected activity.

Employer’s belief in protected activity enough. In a December 2014 opinion, the NLRB concluded that the employer violated NLRA Section 8(a)(1) when firing the driver for displaying the signs and for his radio conversation with a fellow driver. The radio conversation was “unquestionably” protected activity. Moreover, even assuming the driver was only fired for displaying his signs, and regardless of whether displaying the signs was protected activity, the employer’s belief that it was a protected activity was enough to make the termination unlawful, reasoned the Board.

Substantial evidence supported Board’s decision. The employer sought review by the Sixth Circuit and the NLRB cross-petitioned for enforcement of its order. Granting the NLRB’s cross-petition, the appeals court found substantial evidence supporting the Board’s conclusion that the employer violated the Act by basing the termination decision, at least in part, on the radio conversation. (The court did not reach the claim regarding the employee’s display of signs.)

Although the employer argued that the employee was fired solely for displaying the signs in his truck and not for the radio conversation, the Board found that he was fired for both. In the appellate court’s view, this conclusion was supported by substantial evidence, including admissions by the sales manager and operation manager that he was fired for both incidents. Indeed, the operation manager testified that he was concerned about the employee’s “continued” behavior of “disparaging the company.”

Employer’s challenges fail on procedural grounds. Because the employer failed to file an exception to the ALJ’s finding that the radio conversation was a concerted protected activity, the appeals court refused to now consider the employer’s argument to the contrary. Likewise, the employer failed to raise any argument before the Board that it lacked knowledge that the radio conversation was a protected activity. For this reason, and because the employer did not assert that extraordinary circumstances excused the failure to raise the issue earlier, the appeals court was jurisdictionally barred from considering the new argument on appeal.