By Carrie S. Bryant
On July 19, 2016, the Sixth Circuit Court of Appeals issued its opinion in Caterpillar Logistics, Inc. v. National Labor Relations Board, No. 15-1433 (6th Cir. 2016). The Caterpillar Logistics case is significant due to its conclusion that the employer engaged in unfair labor practices by, amongst other acts, questioning employees about their position on unionization, and promising employee benefits in the days leading to a union election. The employer also discharged an employee for making statements that the National Labor Relations Board (“NLRB”) deemed to be an expression of union support and, thus, constituted protected activity.
The United Automobile Workers (“UAW”) began a campaign to organize Caterpillar’s employees, and filed its representation petition on August 16, 2013. The UAW held its first organizing meeting in late August 2013. No company management employees attended the meeting. The next day, supervisor Nick Ewry approached an employee who attended the meeting, John Sponsler, and asked what he thought about the union. Sponsler said that he favored unionization, but was afraid of retaliation. According to Sponsler, Ewry told him he didn’t think Sponsler had anything to worry about, and upper-management knew everyone who was involved. Based on Ewry’s comments, Sponsler believed that someone from the company possibly surveilled the meeting.
On another occasion, supervisor Cory Butcher approached employee Marquis Applin shortly after a mandatory anti-union meeting organized by management and asked if he had made a voting decision. Butcher noted that if the vote succeeded he would no longer be able to speak with Applin “one on one.” Applin later testified that he feared being fired if he indicated that he supported the union.
In addition to the two alleged instances of interrogation, there were allegedly two improper announcements of an employee benefit. The first announcement occurred on September 18, 2013 during a meeting in which managers Brian Purcell and Kevin Rivera announced a $400 safety bonus (ultimately paid in December 2013). Caterpillar alleged that the company explained to employees as early as March 2013 that the bonus may be forthcoming. According to several employees, the bonus was mentioned for the first time at the September meeting. The second alleged improper announcement was at the same September 2013 meeting when Caterpillar announced the upcoming construction of covered smoking shelters for employees.
The representation election occurred on September 27, 2013, and a majority of employees did not vote for unionization. The UAW filed a complaint with the NLRB asserting election objections, including interrogation and improper announcement of benefits.
During the pendency of the UAW’s objections, and less than two months after the election, Caterpillar held an employee meeting and announced the construction of a guard shack. When employee Michael Craft asked about the purpose of the guard shack, manager Brian Purcell said that the shack was “for guards.” Employees laughed. The next day, supervisor Jason Brown overheard Craft telling some employees that they (union supporters) just gained another supporter. He was sick of the way employees were treated at the company. He said Purcell was going down and the gloves were off. Brown pulled Craft aside and asked him why he was so upset. Craft said Purcell made him feel embarrassed, and he wanted Purcell to be held accountable for his actions. He did not want to physically harm Purcell. After Craft’s outburst was reported to human resources, the HR manager decided to suspend Craft. Purcell later reported the incident to the police, and terminated Craft’s employment.
Craft filed a NLRB complaint, arguing that his termination violated the National Labor Relations Act (“NLRA”). His complaint was consolidated with the pending UAW objections.
The Administrative Law Judge (“ALJ”) who ruled on the case issued a decision finding that Ewry and Butcher violated the NLRA by interrogating employees about their union sympathies, and Purcell violated the NLRA when he announced the safety bonus and smoking shelters, all during the critical period between the filing of the representation petition and the election. The ALJ ordered Caterpillar to reinstate Craft, with back pay, because his outburst constituted protected activity, and he had been discharged in violation of the NLRA. The ALJ ordered the election results to be set aside, and a new election to occur.
The matter was appealed, and the NLRB affirmed the ALJ’s order. The NLRB also determined that Ewry violated the NLRA by creating an impression of surveillance.
Caterpillar petitioned the Sixth Circuit Court of Appeals for review of the NLRB’s order. The NLRB cross-applied for full enforcement of its order. The Court denied Caterpillar’s petition for review, and granted the NLRB’s application for enforcement of its order.
According to the Court, substantial evidence supported the NLRB’s conclusion that Ewry’s and Butcher’s respective questioning of employees amounted to coercive interrogation in violation of the NLRA. The Court considered such factors as the timing of the questioning, and that the employees were both approached on the work floor while they were alone. This was potentially a vulnerable setting for the employees.
The Court determined that Ewry created an impression that protected activity had been improperly surveilled by indicating that management was aware of protected activities without revealing his source.
Caterpillar was unable to present a legitimate business reason for the timing of the employee benefits it announced. As for the $400 safety bonus, Caterpillar maintained that the bonus was first mentioned in March or July. Nonetheless, the Court found that substantial evidence supported the NLRB’s findings that employees were first told in September that they would receive a safety bonus. The timing reinforced the presumption that it was intended to coerce employees regarding their election vote. The Court concluded that the smoking shelters were a solution to a long time problem, and announcing the construction for the first time shortly before the election was also designed to influence the vote.
Regarding Craft’s discharge, the Court found it to violate the NLRA, and stated: “Craft’s outburst was plainly an expression of union support and a complaint about perceived working conditions, and while it may well have been crudely stated, it can reasonably be viewed in context as metaphorical speech rather than threatening speech.” Thus, Craft did not forfeit the protections of the NLRA, and the Court ordered him to be reinstated.
Employers should keep in mind that if it is determined that employer conduct interfered with the employees’ freedom of choice, or may have affected the election, election results will not only be set aside, but the employer will be deemed to have committed an unfair labor practice. Employers must also remember that the NLRA prohibits discharging an employee for engaging in an expression protected by the NLRA, and employees discharged under such circumstances may be reinstated.
This article was written by Carrie S. Bryant who is a member of Detroit SHRM’s Legal Affairs Committee and an attorney of the law firm of Dykema Gossett PLLC, located in its Bloomfield Hills, MI office. She can be reached at (248) 203-0728 or email@example.com.
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