Two-year-old Union Activity Led to Adverse Employment Action: NLRB

Practical Law Legal Update 9-521-7684 (Approx. 5 pages)

Two-year-old Union Activity Led to Adverse Employment Action: NLRB

by PLC Labor & Employment

Key Litigated Issues

In Vision of Elk River, Inc., the NLRB considered whether five employees were terminated, as part of a lawful reduction in force (RIF), because of their union-related activities. A key litigated issue was whether the employees' union activity in 2007 sufficiently established the employer's anti-union animus in terminating their employment in 2009.

Background

Vision of Elk River, Inc., employed aides and drivers to bus students to their schools under a contract with the Elk River School District in Minnesota. In 2003 and 2007, the Service Employees International Union, Local 284, tried to organize Vision's drivers and aides. The employees voted against representation both times. In 2007, however, two of Vision's managers, Brent Orr and Mark Ostwald, made comments referring to getting "rid" of the union.

In 2009, after the school district informed Vision that due to a change in policy it would need fewer buses and employees, Vision's transport coordinator, Colleen Smith, realized Vision would need to lay off two drivers and three aides. In deciding who to lay off, Smith used Orr as a consultant and a model matrix Orr had used before, which considered employees' seniority, their attendance and safety records during the previous year, and whether they were willing to drive each day in the morning and afternoon. Smith revised the matrix for the 2009 layoffs, eliminating the last two factors and adding a more subjective "professionalism" factor. Using the revised matrix, Smith recommended Vision lay off five aides and drivers, all of whom had actively supported the union during the 2007 campaign but had engaged in no union activity since.

An NLRB Regional Director issued a complaint after one of the employees filed an unfair labor practice charge, alleging Vision violated the NLRA by laying off the five employees because of their union activities and by laying off three of those employees because of their actual or perceived participation in NLRB proceedings. There were no allegations that the RIF was unlawful, only that the selection of the five employees was discriminatory. An NLRB administrative law judge (ALJ) dismissed the complaint, finding the NLRB's Acting General Counsel failed to prove the layoffs were unlawfully motivated. The Acting General Counsel filed exceptions and Vision filed cross-exceptions with the four-member panel (Board) heading the NLRB's judicial functions.

Outcome

On September 28, 2012, a three-member panel of the Board issued an opinion in the case, reversing the ALJ's decision and finding that:

The layoffs were motivated by Vision's anti-union animus.
Vision failed to prove it would have laid off any of those employees absent their union activity or participation in Board proceedings.

Under the Board's precedent in Wright Line, to prove that an employee's union activity was a motivating factor in his employer's decision to terminate him, the Acting General Counsel must show:

The employee engaged in union activity.
The employer had knowledge of that activity.
The employer bore animus towards the employee's union activity. An employer's animus may be inferred from circumstantial evidence.

Applying the Wright Line test in this case, the Board found that:

All five employees had engaged in union activities, including attending union meetings, wearing union buttons, signing authorization cards and soliciting their coworkers to sign cards.
Vision knew or should have known the employees engaged in union activities. Although Vision argued there was no proof that Smith, as the decision-maker, knew that some of the employees had engaged in those activities, the Board held Orr's knowledge of their activities could be imputed to Smith, and since he participated in the layoff decisions, it was reasonable conclude his knowledge factored into Smith's decisions. The Board also held it was reasonable to assume Vision knew one employee had engaged in union activities because he drove out of his way to eat lunch each day with other terminated employees who were known union supporters.
Orr and Ostwald's statements in 2007 showed Vision's anti-union animus.

In addition to Orr and Ostwald's two-year old statements to find anti-union animus, the Board also relied on:

A 2009 memo from Vision to its employees, stating it could offer a reasonable assurance of employment to those employees who were "willing to work with the company in positive and constructive ways in implementing necessary changes." According to the Board, considered in light of Orr and Ostwald's statements in 2007, the memo implied that employees who engaged in union activity were not being positive or constructive, and therefore their jobs could not be assured.
The pretextual nature of the matrix Smith used to determine who to lay off. The Board found that Smith's revision of the matrix was "highly suspicious," as it eliminated two objective criteria (the employees' safety record and their willingness to work every day in the morning and afternoon) and added a subjective criteria (their professionalism). Similarly, the errors Smith made in calculating attendance scores and the "vague and conclusory" reasons she gave for the terminated employees' low professionalism scores showed Vision's reliance on the matrix was pretextual.

Typically, after finding the Acting General Counsel met his burden under Wright Line, the burden would shift to Vision to show it would have laid off those employees absent their union activities. However, the Board found that since the evidence showed Vision's reasons for laying off the employees were pretextual, Vision by definition failed to show it would have laid of the employees regardless of their union activities. As such, the Board stated there was no need to perform the second part of the burden-shifting analysis, and held that the employees were unlawfully laid off. The Board also found the Acting General Counsel proved Vision harbored anti-union animus towards three of those employees based on their actual or perceived participation in Board proceedings.

Member Hayes dissented, stating the majority's decision ultimately rested on the two comments Orr and Ostwald had made during an unsuccessful union campaign two years before the employees were terminated, which was too long a period of time to prove the layoff decisions by a separate decision-maker were motivated by Vision's anti-union animus.

Practical Implications

The Board's decision in Vision of Elk River, Inc. that two-year old union activity and animus can support an inference of the employer's anti-union animus stretches the temporal limits of the circumstantial evidence the Board will accept to sustain a ULP under its Wright Line analysis. For example, by stark contrast, in Snap-On Tools, Inc., the Board held union activity two months before an adverse employment action was too remote in time to infer anti-union animus. In light of this decision, employers should be aware that an employee's old union activity, even activity that occurred during an unsuccessful organizing campaign years earlier, and old manager statements suggesting animus may be used to infer the employer is motivated by anti-union animus in any future adverse employment actions.

Two-year-old Union Activity Led to Adverse Employment Action: NLRB | Practical Law