NLRB Holds Employer Can’t Scapegoat Employee Out of Anger for Union Activity

February 9, 2021

The National Labor Relations Act (NLRA), like many federal laws, bans discrimination and retaliation. It prohibits an employer from discriminating over hiring, firing, or the terms or conditions of employment to encourage or discourage union membership. Typically, that occurs when the employer punishes or discriminates against an employee because he engaged in union or other protected activities. But what happens if an employer decides to take action against an employee without any knowledge that he had engaged in any such activities? The issue was recently addressed by the U.S Court of Appeals for the District of Columbia Circuit.

Two Mechanics

The International Association of Machinists and Aerospace Workers began an organizing drive against Napleton Cadillac, a newly acquired car dealership located in Libertyville, Illinois. Unlike with many organizational drives, the dealership’s employees didn’t openly support or discuss the union at work. The employer engaged in a campaign in which it explained its opposition to unionization, including three “captive audience” meetings, and sent letters to employees.

Two journeyman mechanics, who were included in the group of employees sought to be represented by the union, were David Geisler, who had 22 years of service with the dealership, and Bill Russell, who had 29 years of service but had been out on a worker’s compensation leave.

Before the organizational drive, Russell would stop by the dealership on a monthly basis and provide an update on his status to the HR department, as well as discuss with his service manager when he expected to return to work. On one visit in June 2016, the manager told Russell, “We are really busy. We could use you.” During a visit in July, the manager asked the mechanic when he could return to work. In early August, the union filed its petition seeking to represent the dealership’s employees.

During Russell’s visit to the dealership in August, the manager told him, “I don’t know why you guys couldn’t have waited to see how things played out before you bring the union in.” The statement was an apparent reference to the fact that the current owners had acquired the dealership in June. During the visit, they also discussed when Russell might be able to return to work. Later that month, he attended a union meeting and thereafter told his manager about it.

During a September visit to the dealership, the manager again asked Russell, “Why couldn’t you just wait and see how things played out?” He also said, “With the union coming in, people were going to be written up who were coming in late; if you punched in late, you would be written up.”

In Wake of Union Election

On October 18, 2016, the election was held, and a majority of the ballots were cast in the union’s favor. When Russell stopped by Napleton Cadillac shortly after the election with an update from his doctor, the manager stated, “Well, it looks like you guys had your way. You got the vote in. You got the union in.”

The manager also said he thought it was kind of sneaky of Russell to come in and vote and not even say hi to him. They then briefly discussed when the mechanic would be coming back to work.

Two days later, Russell received a letter from Napleton Cadillac terminating his employment. Three days after the election, the CFO, on the dealership’s behalf, called the dealership’s attorney and told him they had to lay off at least one technician, given the facility’s insufficient productivity.

On October 27, the same day Russell was fired, the attorney informed the union that Napleton Cadillac was laying off David Geisler, stating he was the lowest-booking tech for the last 10 weeks. The service manager then called Geisler into his office and told him he was being laid off for lack of hours. At the end of the meeting, the technician reported the manager had “asked us not to vote that way.”

The union and Russell filed unfair labor practice charges against Napleton Cadillac. Among other things, the administrative law judge (ALJ) found the employer terminated Russell and laid off Geisler in retaliation for employees’ voting to organize. The dealership filed exceptions to the ALJ’s findings. The National Labor Relations Board (NLRB) affirmed the retaliation findings against the dealership.

Dealership Appeals

Napleton Cadillac then appealed the NLRB decision to the D.C. Circuit in Washington. Much of the appeal centered on whether Russell’s termination and Geisler’s layoff to punish employees for their prounion vote violated Sections 8(a)(1) and 8(a)(3) of the NLRA.

The primary issue was Napleton Cadillac’s position that it had no idea about Russell’s or Geisler’s union activities and therefore couldn’t have retaliated against them. The dealership’s position wasn’t unreasonable because such a situation exists in most NLRA retaliation cases. The question was whether (1) the claims were limited to such situations, or (2) it was a violation of the Act to punish individual employees in retaliation for the union activities of the workforce as a whole.

To establish a Section 8(a)(3) violation, the D.C. Circuit had to find Napleton Cadillac had encouraged or discouraged union membership by discriminating in regard to hiring, tenure, or any term or condition of employment. Because a primary issue was the dealership’s motive for firing Russell and laying off Geisler, the court applied its Wright Line burden-shifting format:

  • The general counsel (GC) had to make a prima facie (or minimally sufficient) showing to support the inference that protected conduct was a motivating factor in the adverse employment action.
  • If that burden were met, the burden of persuasion would shift to the employer to show it would have taken the same action in the absence of the unlawful motive.

The issue in Napleton Cadillac’s case was whether the GC had established the prima facie showing. In reviewing the facts and the law, the D.C. Circuit ruled the GC need not prove the employer’s knowledge of each affected employee’s individual union activity. According to the court, the employer violates the NLRA if it takes adverse action against employees, regardless of their individual sentiments toward union representation, to punish them as a group and discourage union activity or in retaliation for the protected activity of some.

General retaliation by an employer against the workforce can discourage the exercise of self-organization and collective bargaining rights just as effectively as adverse action taken against only known union supporters, the D.C. Circuit said. In support of its position, the court noted the central focus of the Wright Line analysis is on the employer’s motivation, as opposed to the affected employee’s union sentiments.

The D.C. Circuit did acknowledge the employer’s awareness of a targeted employee’s union activity is the most common way of proving discriminatory intent. That kind of individualized knowledge, however, isn’t always necessary for a violation to be found. If adverse action is taken 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.”

Napleton Cadillac apparently made a counterargument that discrimination in this form (without knowledge of individual employees’ sentiments) wouldn’t apply when only two employees were affected. In shooting down the argument, the D.C. Circuit said the dealership hadn’t cited, nor had the court found, a single case to support a view that discrimination in this form counts only when the employer’s action hit a certain numerosity or workplace-wide threshold. Creatively or erratically packaging the discrimination gets no free pass. Napleton 1050, Inc. v. NLRB, No. 19-1025 (D.C. Cir., Oct. 6, 2020).

Bottom Line

Unlike with retaliation cases under federal fair employment laws such as Title VII of the Civil Rights of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), you must be extremely cautious when making any employment-related decisions arising in or near the context of protected concerted activity. The typical defense of “there can be no retaliation in the absence of knowledge of protected activity by the decision maker” won’t apply to the analysis of an 8(a)(3) charge. Engaging in any conduct that can be perceived as scapegoating or punishing certain employees for others’ conduct will be held to be a violation.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.