An auto dealership‘s termination of two journeyman mechanics, despite its lack of knowledge of their union sentiments, was in retaliation for its employees’ vote to unionize, the U.S. Court of Appeals for the District of Columbia Circuit ruled. The employers’ actions were found to be unfair labor practices in violation of the National Labor Relations Act (NLRA).
Napleton Auto Group, which owned 14 vehicle dealerships, bought Napleton Cadillac of Libertyville, Ill., in June 2016. Six of the group’s existing dealerships were unionized at the time, and those dealerships belonged to the New Car Dealer Committee, a management-side bargaining association. Napleton Cadillac was not unionized. Management retained its new acquisition’s 12 car-servicing employees.
When a unionization drive was initiated at the dealership in August 2016, management responded by holding three captive-audience lunch meetings and sending employees a letter urging them to vote “no” on unionizing.
One long-time employee, a journeyman mechanic who was on medical leave when Napleton Cadillac changed hands, would check in with the service manager each month to provide a work status report from his doctor. During his August, September, and October visits to the dealership, the service manager gave the mechanic a hard time about the union membership drive, although the mechanic himself was not involved in the effort. The union won representation on Oct. 18; two days later, the mechanic was terminated.
Three days after the union won the election, the auto group’s CFO told the dealership that it had to lay off at least one other technician due to the dealership‘s insufficient productivity. The service manager informed a 22-year-veteran journeyman mechanic that he was being “laid off for lack of hours.” The manager also told the mechanic that he had asked the mechanics “not to vote that way,” the mechanic testified.
Napleton Cadillac and the union began bargaining for a labor agreement following the election, but negotiations stalled by August 2017. At the same time, the union initiated a strike against the dealer committee’s dealerships. While Napleton Cadillac was not part of the dealer committee targeted by the strike, Napleton Auto Group’s six other unionized dealerships were. Despite promises from the auto group that it would “funnel the work” from striking dealerships to employees at Napleton Cadillac, the dealership‘s employees joined the strike.
The auto group sent the Napleton Cadillac mechanics a letter, stating that they had two days to remove their toolboxes, which weigh thousands of pounds, from the shop. The removal action could be avoided if the mechanics resumed work immediately, they were told. This demand was not made of the striking employees at the other dealerships, according to the auto group’s corporate manager, because “most of them wanted to work through the strike, they just weren’t allowed to,” unlike the Napleton Cadillac employees who had chosen to strike. When the strike continued, the toolboxes were pushed outside to a service road and left “uncovered and unattended,” resulting in damage to two toolboxes.
An administrative law judge (ALJ) found that the dealership had committed several unfair labor practices related to terminating the two mechanics in retaliation for its employees voting to unionize. These unfair practices included telling the second mechanic he was being laid off because of the vote, creating the impression in conversation with the first mechanic that the dealership was surveilling union activity, removing the toolboxes in retaliation for the strike, and implicitly threatening in the letter regarding the toolbox removal that employees would lose their jobs for striking.
The National Labor Relations Board (NLRB) reversed the ALJ’s findings as to the implied threat of job loss related to the letter but affirmed the remaining findings.
Upon review, the appellate court held that the NLRB had appropriately applied the Wright Line test in determining whether an unlawful motive was behind the adverse action taken by the employer. The test requires that NLRB show that protected conduct was a motivating factor in the adverse employment action. If that requirement is satisfied, then the burden shifts to the employer to show that it would have taken the same action in the absence of the unlawful motive.
In this case, “the record amply supports the NLRB’s conclusion that such a showing was made,” the appeals court said. An employer’s discharge of uncommitted, neutral, or inactive employees either to cover up for discrimination against a targeted union-supporting employee or to discourage employee support for the union violates the NLRA, according to the court. “Substantial evidence supports the board’s factual finding that anti-union animus and a desire to strike back at employees motivated Napleton Cadillac’s actions.”
Napleton Cadillac discharged the two mechanics “for the express, announced, and prohibited purpose of retaliating against and punishing its employees’ collective vote for the union,” the court found. “Firing employees—union supporters or not—to intentionally send a message to employees that union activity will have hurtful consequences falls squarely within the statute’s prohibitions.”
The court also upheld the board’s finding of retaliatory discrimination by the auto group in making Napleton Cadillac mechanics remove their toolboxes while allowing employees at other dealerships to retain theirs at work during the strike.
Finally, the court said it lacked jurisdiction to consider the employer’s challenge to the board’s finding that it had created an impression of unlawful surveillance because the dealership had not earlier presented this argument to the board.
The court dismissed the employer’s petition for review and granted the board’s request for enforcement.
Napleton 1050, Inc., d/b/a Napleton Cadillac of Libertyville v. National Labor Relations Board, D.C. Cir., No. 19-1025 (Oct. 6, 2020), order denying petition for rehearing en banc (Dec. 4, 2020).
Professional Pointer: Employers should keep in mind that retaliation against workers for union activity, even if not directed specifically at union activists or supporters, is prohibited by the NLRA. Knowledge of a targeted employee’s union sentiments isn’t necessary for establishing discriminatory intent.