8th Cir. Gives NLRB Ruling Mixed Review; Firings Illegal but Alleged ‘Coercion' Wasn't

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By Lawrence E. Dubé

June 22 — The National Labor Relations Board had substantial evidence to support its finding a Nebraska beef processor illegally fired three employees for planning a work stoppage, but the board erred in concluding that supervisors also made unlawful coercive remarks, the U.S. Court of Appeals for the Eighth Circuit held June 22.

Writing for the court, Judge James B. Loken said the board properly relied on the credibility findings of an administrative law judge and concluded that Greater Omaha Packing Co. fired the workers for their involvement in earlier job actions and their suspected planning of additional protests.

But the appeals court rejected the board's findings that Greater Omaha unlawfully asked one of the employees what he wanted and told two others the company was aware of their protected activity. The remarks were not coercive or illegal, the court held.

Firings Linked to Protests, Job Actions

According to the decision and NLRB records, Greater Omaha employs several hundred workers in the fabrication area of its processing plants. In 2008, the entire non-union fabrication staff stopped work until the owner agreed to listen to their concerns about working conditions.

In April 2012, the court said, about a dozen employees left their work stations to protest the speed of the processing lines as well as their pay rates and the employer's staffing levels. The plant manager promised to take their complaints up with senior management, but Loken said the employees “remained disgruntled” and Carlos Zamora, Jorge Degante, and Susana Salgado made plans for a work stoppage to start May 14 at 10 a.m.

At 9:30 a.m. on May 14, the plant manager summoned Zamora, who testified: “He wanted to know what it is that I wanted, that I have a good job, that I have good insurance, that I have good overtime, what else did I want?”

Zamora said he simply wanted an increase, but the manager told him he was fired for leaving the processing line on earlier occasions. Degante and Salgado were fired the same day.

Board Found Unfair Labor Practices

A three-member NLRB panel concluded that Greater Omaha illegally fired the employees because “[they] previously had engaged in protected activity and the Respondent terminated them because it perceived they would do so” (360 N.L.R.B. No. 62, 198 LRRM 1785 (2014)).

A board majority—Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa—also held the employer violated Section 8(a)(1) of the National Labor Relations Act by coercively questioning Zamora, and by telling Degante and Salgado “someone” reported they were organizing a work stoppage.

NLRB Member Harry I. Johnson concurred in the finding of unlawful questioning but dissented from the board's finding that the company gave employees the impression their protected activity was under surveillance.

The Eighth Circuit enforced the board's holding that Greater Omaha unlawfully fired the three employees, finding the board had both direct and circumstantial evidence that the workers were discharged because of their past involvement in concerted protests and their planning of the latest action, but the court declined to enforce either finding of unlawful remarks by the employer.

Court Agrees on Firings, Not Interference Claims

The Eighth Circuit enforced the board's holding that Greater Omaha unlawfully fired the three employees, finding the board had both direct and circumstantial evidence that the workers were discharged because of their past involvement in concerted protests and their planning of the latest action.

However, the appellate court declined to enforce either finding of unlawful remarks.

The board majority said the questioning was coercive because it communicated the company's displeasure about employees' protected concerted activity.

But Loken said an employer is entitled to a “reasonable opportunity to exchange views” with employees, and there was no showing that questioning Zamora was coercive.

Because Zamora was immediately fired, the court said, the questioning did not coerce him not to exercise his rights under the NLRA. Additionally, the court said, the company immediately escorted Zamora out of the plant, depriving him of any opportunity “to relate management's displeasure to his coworkers.”

Surveillance Allegation Lacked Proof of Coercion

The appeals court said it did not doubt that surveillance of NLRA-protected activity may sometimes violate Section 8(a)(1).

However, Loken wrote that Degante and Salgado were fired and removed from the plant before they could inform any other employees about any surveillance of employee activity.

In any event, the court said, the planned work stoppage, which never took place, would have immediately revealed which employees were taking part. Under those circumstances, the court said, the remarks to Degante and Salgado did not violate the NLRA.

Judges William Jay Riley and Lavenski R. Smith joined in the opinion.

McGraw & North represented Greater Omaha Packing Co. NLRB attorneys represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Greater_Omaha_Packing_Co_Inc_PetitionerCrossRespondent_v_National.