When an employee is disciplined and then claims the employer acted on account of union animus in violation of Section 8(a)(3) of the Act, evidence to support such a claim either can be proffered through direct evidence, such as “smoking gun”-type statements made by a supervisor or top-management that the discipline was implemented due to union activity (extremely rare), or – as is far more common – where an inference may be drawn based on all the circumstances. As the Board has previously explained, this union animus must be the motivating factor behind the adverse employment action in order for an employer to be liable for violating the Act.

On December 3, 2020, the Board, in Volvo Group North America, LLC, 370 NLRB No. 52 (2020), discussed the sufficiency of evidence in drawing an inference of union animus in Section 8(a)(3) complaints alleging that the employer violated the Act in taking an adverse employment action against an employee because of union or other protected concerted activity.  The ALJ concluded the employer violated the Act for issuing a written warning to an employee for allegedly violating a rule against wasting time based on the following facts: the employer failed to investigate the misconduct; the employer allegedly disparately treated the employee; and the supervisor allegedly made discriminatory statements.

On appeal, the Board re-affirmed the necessary proof for the General Counsel to satisfy its burden under Wright Line, which must be more than a preponderance.  In this case, the Board concluded that the evidence to support an 8(a)(3) violation was wanting and reversed the ALJ.

Background

The employer operates a distribution warehouse where it stores truck parts. An employee (the “Charging Party”) worked in the employer’s distribution facility as a warehouse operator where he was responsible for transporting inventory between warehouse storage and the loading docks for incoming and outgoing shipments. The employer utilized a tracking system to monitor employee movements in the warehouse and record employee productivity by scanning employee pickup and drop-off of inventory in the warehouse. Comparing the time stamps of the inventory scans allows the employer to monitor employee productivity, and excessive time gaps between scans could alert the employer to employees engaging in time-wasting activities.

The Charging Party was a vocal union supporter who frequently engaged in union activities, and often voiced concerns during pre-shift meetings. The Charging Party had a disciplinary history prior to the incident at issue in this case, involving verbal and written warnings for safety and work quality issues and non-disciplinary coaching for wasting work time. The non-disciplinary coaching was provided in response to two incidents where the Charging Party was observed in the breakroom before his scheduled break and where the employer’s logs indicated poor productivity. The Charging Party did not grieve any of these disciplinary actions and did not allege in the unfair labor practice charge that these actions were unlawful.

Rather, the unfair labor practice charge was filed in response to a written warning the Charging Party received after a supervisor reported seeing him in the breakroom 25 minutes before his scheduled break-time. As the Charging Party had already received non-disciplinary coaching for taking an early break, the employer issued a written warning for violating the employer’s policy against wasting time during work hours.

The Charging Party attempted to refute the supervisor’s account and requested the employer review his logs. The Charging Party admitted to being in the breakroom earlier than the scheduled break-time, but denied he did so 25 minutes early and argued that there were other employees in the break-room with him who were not disciplined. The employer reviewed the logs but declined to rescind the written warning after finding that the Charging Party’s logs showed extensive, unexplained time gaps between scans on several different dates.

Analysis

As noted above, the ALJ found that the employer violated Section 8(a)(3) of the Act by issuing a written warning.  While the Board agreed with the ALJ that the General Counsel established the Charging Party’s union activity and the employer’s knowledge of it, the Board disagreed with the ALJ’s finding that the General Counsel sustained his burden of proving that the employer harbored animus toward the Charging Party’s protected activity. Rather, the Board found that, based on the record as a whole, there was neither direct evidence of union animus nor any reasonable basis for inferring animus toward the protected activity.

First, the Board reasoned that the record failed to establish that the discipline was either unjustified or constituted a break in the employer’s normal practice. Therefore, the circumstances did not support the argument that the employer’s discipline of the Charging Party was motivated by union animus. Although the parties disagreed on the timing of the Charging Party’s early break, it was undisputed that the Charging Party was in the breakroom prior to the scheduled break time. The Charging Party had a documented history of taking early breaks and received verbal warnings and coaching for this misconduct, as well as other time-wasting activity. The General Counsel failed to establish that the employer’s discipline of the Charging Party was inconsistent with the employer’s treatment of other similar incidents.

The Board also found that the timing of the discipline relative to the timing of the Charging Party’s protected activity weighed against a finding of union animus where the protected activity occurred months before the written warning. In fact, shortly after this protected activity, the Charging Party took an early break and had productivity issues for which the employer did not discipline the Charging Party. The written discipline was issued after the Charging Party took another improper break, which supports the position that the Charging Party was disciplined for his recidivism — not for his protected activity.

Next, the Board reviewed the facts on which the ALJ premised her inference of union animus:

• Failure to Investigate: In some cases, an employer’s failure to investigate misconduct can be a sign that its discipline was really for another purpose, such as union activity.  Here, the Board found that the employer was under no obligation to investigate before issuing a warning and did not otherwise have a practice of conducting pre-discipline investigations.  Thus, the evidence did not support an inference of animus.
• Disparate Treatment: The Board concluded that the evidence failed to establish that other employees were in the breakroom with the Charging Party, which dispelled the Charging Party’s disparate treatment claim. The Board also rejected the ALJ’s reliance on a note entered into evidence from a meeting held long after the incident that was ambiguous and likely constituted double hearsay, and the only other evidence of the presence of other employees in the breakroom was the testimony of the Charging Party—but significantly the ALJ did not rely on this testimony, presumably because she did not find the Charging Party to be a credible witness.
• Supervisor’s Statement: The ALJ inferred union animus from a statement by a supervisor that he had “concerns” about the Charging Party’s interruptions at pre-shift meetings, where “some” of the interruptions involved issues that were, as the ALJ described, “rooted in the collective bargaining agreement”. However, the Board found that this was not enough for the General Counsel to show that the employer had concerns about some of the Charging Party’s conduct and that the Charging Party had engaged in protected activity. Under Wright Line, the General Counsel was obligated to demonstrate a connection between the employer’s concerns and the Charging Party’s protected activity in order to establish union animus. The record showed that only some of the Charging Party’s interruptions during pre-shift meetings involved contractual issues, and the General Counsel did not prove that the employer’s stated “annoyance” was directed at the Charging Party’s protected activity.

Finding that the General Counsel did not sustain his burden under Wright Line of proving by a preponderance of the evidence that the Charging Party’s protected activity was a motivating factor in the employer’s decision to issue a written warning for wasting time, the Board dismissed the complaint allegation based on this discipline.

Takeaways

The Board’s decision confirms that the Board views the General Counsel’s burden of proving union animus as requiring more than unsubstantiated claims of unfairness or out-of-context statements. Rather, the General Counsel must provide evidence, grounded in fact, of a causal connection between an employee’s protected activity and the employer’s adverse employment action against the employee. The Board’s decision represents a stricter interpretation of the law regarding the General Counsel’s burden of proof under the Wright Line analysis; one cannot help but wonder how long this application of the Wright Line analysis will last with the upcoming change in administration. Only time will tell, and, as always, we will be closely monitoring the situation for any signs of impending change.