Anti-union conduct and remarks taint discharge decision

SCA Tissue North America LLC v. NLRB, 7th Cir., No. 03-2508, June 15, 2004.

The 7th U.S. Circuit Court of Appeals upheld the National Labor Relations Board's (NLRB) determination that an employer discharged a prounion employee on the basis of antiunion animus--not simply for violating the employer's code of conduct--in violation of the National Labor Relations Act.

SCA Tissue North America LLC (SCA), a manufacturing company, hired Frederick Sandoval in 1995. In September 2000, the Paper, Allied-Industrial, Chemical and Energy Workers International Union initiated an organizing drive at the SCA location where Sandoval worked. Sandoval openly and strongly supported the union, but his peers did not. The union lost the representation election.

In September 2001, Sandoval left work early on two consecutive days after making arrangements for others to cover for him. He later claimed he had had permission to leave early, but the night supervisor denied having given him permission to leave.

Sandoval was discharged for job abandonment (rather than simply being disciplined for leaving early without permission). After Sandoval was terminated, his regular supervisor told him to cover up his union T-shirt as he walked through the plant and commented on Sandoval's attitude.

The union filed a charge on Sandoval's behalf, alleging the termination was in retaliation for his union activity. The NLRB ruled in favor of Sandoval, finding that, during the organizing campaign, SCA had told employees they could not talk about the union and they could not wear union buttons. The NLRB found that there was no policy prohibiting nonwork-related conversations and that the employer's no-jewelry policy was selectively enforced.

Regarding the supervisor's comments about Sandoval's union T-shirt and bad attitude, it was reasonable for the NLRB to conclude that the T-shirt comment was intended to "crush union ideation," not to maintain order as the employer contended, the court said.

SCA's attempt to establish a so-called Wright Line affirmative defense--that even if SCA harbored anti-union animus, it would have terminated Sandoval anyway--also failed.

RELATED ARTICLE: Professional Pointer

This ruling is a stern warning to employers: Even if the six-month deadline for filing an unfair labor practice based on anti-union conduct during an organizing campaign has expired, employers still must consider how that conduct may factor into subsequent decisions to terminate a prounion employee. In general, if an employer is flexible, it can't deny that flexibility to those who have engaged in protected activity. Finally, remind supervisors that what they say or do during a termination can make or break the employer's case.

BY JONATHAN A. SEGAL, AN ATTORNEY WITH WOLF BLOCK SCHORR AND SOLIS-COHEN IN PHILADELPHIA AND A CONTRIBUTING EDITOR TO HR MAGAZINE.

EDITOR'S NOTE: THESE ARTICLES SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.

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