Question: Davis Supermarkets, Inc. v. National Labor Relations Board 2 F.3d 1162 (DC. Cir. 1993)
The owners of a supermarket whose employees at one of its outlets wanted to vote in a union interfered with the employees' organizing efforts and terminated several employees. The company was found by the NLRB to have committed unfair labor practices, and the company vehemently disagreed. The court upheld the NLRB's decision and found in favor of the employees.
Mikva, C. J.
In March 1986, Local 23 launched a concerted organizing campaign in the Hempfield store, which employed more than one hundred men and women. Over the next few months, Donald Porter, an organizer for Local 23, met with various employees on and off the store's premises, urging them to sign authorization cards for Local 23. Some of the employees that he successfully recruited solicited authorization cards from other employees. By April 19, 1986, a total of thirteen employees had signed authorization cards for Local 23. On that day, the Company summarily laid off eight workers, six of whom had signed authorization cards. In May, the Company fired or constructively fired two other employees who had signed cards. In July, the Company constructively discharged Linda Kunkle, who had also signed a card for Local 23. On May 1, at two separate meetings with various employees of the Hempfield store, Bob Davis, the chairman of the Company's board of directors, told the assembled workers that he wanted them to sign authorization cards for the Steelworkers. After one of the meetings, a Steelworkers representative from the Greensburg store and an official of that union handed out Steelworkers contracts and authorization cards to the employees.
Following the other meeting, two Steelworkers representatives from the Greensburg facility distributed Steelworkers contracts and cards. The Company challenges the findings of unfair labor practices as to the firings, and the aiding of the Steelworkers at the Hempfield facility. The Board found the April 19 layoffs to be violations of section 8(a)(1) and 8(a)(3) of the Act. Section 8(a)(1) states, "It shall be an unfair labor practice for an employer. . .to interfere with, restrain, or coerce employees in the exercise of [self-organization and collective bargaining] rights guaranteed in section 157 of this title." 29 U.S.C. 158(a)(1). Section 8(a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. 158(a)(3). The Company alleges that it fired the six employees for a variety of valid reasons, including "attitude problems," poor performance and consolidation in response to slow business.
The Board did not find these explanations believable, in light of the shifting reasons offered for the dismissals, the lack of evidence of performance and attitude problems, the absence of prior warnings to the employees supposedly fired for such problems, and the quick replacement of the workers allegedly laid off for economic reasons with employees from the Greensburg store. The Board found instead that the firings were part of a strategy to suppress Local 23's organizing campaign. Despite the Company's assertions, there is considerable direct evidence that it knew of or suspected the pro-union sympathies of at least some of the workers. For example, about a year before she was fired, Shotts asked two managers about getting a union in the store, and the managers warned her not to talk about it any further. Also, on March 25, 1986, Welsh's immediate supervisor interrogated her about a Local 23 meeting that she had attended. As for the other employees, however, there is, as the Company maintains, scant direct evidence that the Company was aware they were union supporters when it discharged them.
The lack of direct evidence does not, however, necessarily render the Board's findings of anti-union motivation inadequate. The Board found substantial circumstantial evidence that the Company knew of the employees' union activities, and "although the Board may not base its decision on mere conjecture, the element of knowledge may be shown by circumstantial evidence from which a reasonable inference may be drawn." "Similarly, the Board may infer discriminatory motive from circumstantial evidence." Among the factors on which the Board may base such inferences are "the timing of the discharges in relation to the union activity [and] the simultaneous nature of otherwise unconnected dismissals." Both the timing and the nature of the discharges in this case suggest anti-union motivations. The firings occurred just as Local 23's campaign was picking up steam, and the employees, who worked in various different departments, were all dismissed on the same day for entirely disparate reasons. Furthermore, of the eight employees laid off, six were union supporters, and this occurred at a time when only thirteen out of more than one hundred employees had signed cards.
In light of the summary and targeted nature of the dismissals and the Company's failure to come up with plausible legitimate reasons for them, there was probably sufficient evidence to find that the six firings were violations of the Act. Nonetheless, there is a somewhat troubling lack of evidence that the Company even had the opportunity to learn of the union advocacy of several of the fired workers. Hilty and Garris, in particular, seem to have performed very few union-related actions on store premises within the sight of other people. There is, however, an alternative and less problematic manner in which to assess the legality of these six layoffs. Although the General Counsel ordinarily must show that the employer was aware of the pro-union sentiments of a dismissed employee in order to establish an 8(a)(3) violation, he does not have to make such a showing if the dismissal is part of a mass layoff "for the purpose of discouraging union activity." The Board's finding of an unlawful mass layoff is clearly supported by substantial evidence. A supervisor told Defibaugh on April 19, the day of the firings, that "they heard the union was getting close to the number they needed for an election and they were getting rid of the troublemakers and the people with attitude problems." We thus hold that the first part of the Wright Line test, requiring a showing that firings were motivated by antiunion animus, is satisfied under the mass discharge theory.
According to the second part of the test, the employer can overcome the showing of anti-union motivation only by establishing, by a preponderance of the evidence, that "the discharge would have occurred in any event and for valid reasons." Because the Board's findings were clearly reasonable, we see no basis for overturning its conclusions. We therefore uphold the Board's determination that the six April 19 layoffs constituted unfair labor practices in violation of sections 8(a)(1) and 8(a)(3) of the Act. In addition to the six April 19 firings, the Board also found three discharges or constructive discharges that occurred in later months to be violations of sections 8(a)(1) and 8(a)(3). Because the dismissals of Larry Miller, Charles Miscovich, and Linda Kunkle occurred on three different dates ranging from May to July, the mass discharge theory does not apply. In order to establish anti-union animus, the General Counsel was therefore required to establish that the Company was aware that each of the three employees supported Local 23. Miller was discharged on May 14, 1986. The Company alleges that it fired Miller, a bagger and stockboy, because, while on break, he ate food that he had stolen from the store. The Board found, however, that the store manager who fired Miller never even asked him whether he had paid for the items.
Moreover, neither of the two employees with whom Miller had been eating were similarly discharged. In light of the fact that Miller repeatedly spoke to Porter, Local 23's organizer, in the parking lot of the Hempfield store, and that the store manager once told Porter to leave Miller alone, there is substantial evidence that the Company knew of Miller's support of Local 23 and fired him for this reason. Miscovich worked a day shift at the Hempfield store because he also had a night job at a gas station. In midMay, shortly after Miscovich signed a Local 23 authorization card, the store manager began scheduling him for night shifts. When Miscovich reminded the manager of his situation, he responded that Miscovich had to work when told to or not work at all. After that, Miscovich was never able to work at the store again. There is no doubt that the Company was aware of Miscovich's pro-union stance, for he was called to a May 12 meeting where Bob Davis, the chairman of the Company, told the assembled workers that he knew they had all signed authorization cards. There is substantial evidence to support the Board's conclusion that the Company constructively discharged Miscovich in violation of sections 8(a)(1) and 8(a)(3). On July 26, Kunkle quit her job, after suffering through three weeks of inexcusable treatment. The Company transferred her from an office job to the meat department, reduced her hours, required her to stay in a back room and wrap meat, and forbade other employees to talk to her about anything except meat. There is no doubt that the Company was aware of Kunkle's pro-union activities. Kunkle was an active and public Local 23 supporter who had signed an authorization card, solicited cards from other employees, and picketed the store to protest its unfair labor practices. The Company apparently photographed her picketing. Moreover, she was one of the employees present at the May 12 meeting where Bob Davis told the assembled workers that he knew they had all signed authorization cards. We uphold the Board's finding that Kunkle was unlawfully constructively discharged. Unfair labor practices ruling UPHELD.
1. Do the employer's violations seem clear to you? Why do you think the employer did not think they were so clear?
2. If you were the employer in a similar situation, and had read this case, what would you do when your employees wanted to unionize?
3. Think about the three employees terminated outside the mass layoffs. How would you have handled these situations as a manager?