Richard S. Cleary, Editor
Greenebaum Doll & McDonald PLLC

Vol. 18, No. 7
April 2008

LABOR LAW

Falsified complaint is sufficient to strip prounion worker of NLRA protections

The Sixth Circuit recently held that a manufacturer didn't violate the National Labor Relations Act (NLRA) when it fired a prounion employee. The employee sent the company an unsigned letter complaining about a supervisor's mistreatment of employees and falsely depicted the letter as coming from a coworker. Regardless of the employee's motives, the court of appeals said the company was justified in terminating him.

Facts

In October 2003, United Auto Workers began an organizing campaign at Ogihara America Corporation and successfully petitioned for an election. The election was held in January 2004, with Ogihara employees narrowly voting against union representation. The union filed an unfair labor practice charge challenging the election results and claiming the employer's conduct had unfairly influenced the election outcome. A hearing was held on those charges on May 25, 2004.

The administrative law judge (ALJ) agreed with the union that the company had unlawfully disciplined an employee for engaging in statutorily protected activities, such as the distribution of prounion literature, and found that the company's unlawful actions affected the election. The ALJ ordered that a new election be held in July 2004.

Leo Andre Ahern worked for Ogihara as a press maintenance technician. He was active in the union campaign and testified on the union's behalf at the May 25 hearing. Between May and July 2004, Ahern and two coworkers became dissatisfied with a supervisor who they felt mistreated employees. The three men wrote a letter to Ogihara's president expressing their dissatisfaction with the supervisor. Fearing that their union activity could lead to retaliation, the men decided the letter should be penned anonymously.

When Ahern went to mail the letter from a local Kinko's store, a Kinko's employee instructed him to fill out the sender's name and address. Because Ahern feared that the president might not open a package from him because of his association with the union, he listed Bruce Pierson, an antiunion employee, as the sender. Instead of listing Pierson's address and phone number, Ahern listed the county courthouse's address and a fictitious phone number. He later testified that he did that so the company would know that Pierson wasn't the actual sender.

Upon receiving the package, Ogihara investigated its origin. It first approached Pierson, but he denied having sent it. It eventually traced the package to the Kinko's store and learned that the store had surveillance cameras. Ogihara filed a suit on behalf of the supervisor and Pierson, alleging the anonymous sender had engaged in defamation and had interfered with their employment. It then subpoenaed and reviewed the store's surveillance tapes and determined that Ahern had sent the package.

Ahern denied having sent the package. The company then informed him that it had proof of his actions and fired him. Ahern and the union filed an unfair labor practice charge against Ogihara, alleging that he was fired because of his protected concerted activities, including his complaints in the letter, his prounion activities, and his testimony in the May 25 hearing.

An ALJ sustained the charges, but the National Labor Relations Board (NLRB) reversed and dismissed the allegations, holding that Ahern lost the protections of the NLRA. Ahern and the union then petitioned the Sixth Circuit to review and set aside the Board's decision.

Sixth Circuit's decision

Section 7 of the NLRA protects employees' right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Sixth Circuit stated that Ahern lost the protection of the Act for two reasons. First, he engaged in a "deliberate falsity." Second, as stated by the Board, "activity designed to destroy the reputation and end the employment of another employee" can also cause an employee to lose the Act's protections.

Ahern argued that he didn't anticipate any retaliation against Pierson. In fact, the company took no action against Pierson. The court reasoned, however, that although Ahern's falsification didn't actually harm Pierson, "that does not mean that it still did not pose a 'substantial risk' at the time."

Ahern also argued that his actions weren't sufficiently egregious to cause him to lose the protection of the Act because they weren't both deliberate and malicious. The court stated, however, that previous Board decisions haven't clarified whether a deliberate falsification must be malicious to lose the Act's protection.

The court decided that "the determinative question is whether an employee's conduct is sufficiently 'egregious' to cause him to lose protection of the Act." The Sixth Circuit determined that it was a "line-drawing exercise" in which the Board's decision shouldn't be disturbed unless it is "illogical or arbitrary."

The court found the Board's decision to be neither illogical nor arbitrary. Despite Ahern's contention that the falsification was understandable because of a reasonable belief that the company wouldn't open an envelope bearing his name, the court noted that falsifying Pierson's name wasn't the only alternative. He could have listed a fictional name to satisfy Kinko's request or used regular mail without including any sender's name or address. Thus, the court found that the Board reasonably concluded "there was no necessary link between [Ahern's] falsity and the complaints raised by employees."

The court also upheld the Board's decision that the company didn't discriminate against Ahern based on his union activities during the representation election. The Board found that Ahern's unprotected activities provided legitimate reasons to fire him, emphasizing that the company had a published rule against falsifying documents. Although Ahern and the union argued that he didn't actually violate the rule, the court held that the company's good-faith belief that he did was sufficient justification.

Finally, the court also agreed with the Board that Ogihara didn't retaliate against Ahern because of his testimony on behalf of the union. Although Ahern argued that the temporal proximity of his testimony and his discharge was suspicious, the Board appropriately held that his discharge was more temporally related to his deliberate falsification. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. NLRB, 2008 WL 21548 (6th Cir., 2008).

Lesson for employers

This case is encouraging for employers because it refutes the notion that prounion employees are virtually untouchable when it comes to discipline. Clearly, employees aren't shielded from disciplinary action when they engage in sufficiently egregious conduct despite their strong union ties.

Copyright 2008 M. Lee Smith Publishers LLC

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