Sca Tissue North America Llc, Petitioner-Cross-Respondent v. National Labor Relations Board, Respondent-Cross-Petitioner
Docket: 03-2508, 03-2912
Court: Court of Appeals for the Seventh Circuit; June 15, 2004; Federal Appellate Court
SCA Tissue North America LLC terminated union supporter Frederick Sandoval on September 24, 2001, claiming his early departures from work violated company policy. The National Labor Relations Board (NLRB) found that the termination was motivated by anti-union animus, violating 29 U.S.C. 158(a)(1) and (3) of the National Labor Relations Act. The NLRB ordered Sandoval’s reinstatement, compensation for lost wages and benefits, expungement of his employment record regarding the discharge, and mandated that SCA inform employees of their rights under the Act. SCA sought judicial review of the NLRB's order, while the Board cross-petitioned for enforcement. The court affirmed the Board's decision, citing substantial evidence supporting its findings.
Background details highlight that Sandoval had been with SCA since 1995 and had transitioned from a machine operator to a maintenance mechanic. His personnel file showed prior performance issues that were not formally disciplined and had not occurred for over two years before his termination, indicating he was considered a good employee. Sandoval actively supported a union organizing effort initiated by PACE in September 2000, which ultimately failed in an election held in December 2000, where employees voted against union representation. Despite the defeat, Sandoval continued to advocate for unionization among his colleagues.
SCA operates continuously, with maintenance employees like Sandoval typically working twelve-hour shifts. In fall 2001, Sandoval was required to cover five night shifts over six weeks due to a temporary reassignment. To accommodate a night class he enrolled in, Stievo allowed Sandoval to work from 9:00 p.m. to 9:00 a.m. on the first night shift, which began on September 18, 2001. At around 4:00 a.m. on September 19, Sandoval expressed fatigue to night supervisor Laura Bliss and requested to leave, but she instructed him to wait for Stievo. After waiting until 6:00 a.m. without seeing Stievo, Sandoval received encouragement from day-shift employee Mike Moberly to clock out and leave, which he did.
On his next shift, starting September 19, Sandoval again left early at 6:00 a.m. on September 20 without seeking permission from a supervisor. He did this after confirming coverage with colleagues. Later that day, Stievo learned of Sandoval's early departures and conducted an investigation, including interviews with coworkers and reviewing time logs. After consulting with HR and management, Stievo concluded that Sandoval's actions violated the "Code of Conduct" policy, which allows immediate termination for serious offenses, in contrast to the attendance policy that mandates progressive discipline for attendance issues.
Stievo and Moser met with Sandoval on September 24, 2001, to inform him of his termination for alleged job abandonment due to leaving work early without permission on two consecutive days. Sandoval contested this, asserting that he had arranged for coverage and communicated his need to leave to Bliss on the first day. Stievo, not having interviewed Bliss, withheld immediate judgment and sent Sandoval home, promising to contact Bliss for clarification. Upon speaking with Bliss, Stievo learned she denied granting permission for Sandoval to leave but acknowledged he approached her about feeling tired. Stievo concluded that Sandoval had lied about receiving permission and subsequently finalized the termination decision.
On October 30, 2001, PACE filed an unfair labor practice charge against SCA, leading to a Board complaint on December 26, 2001. An administrative law judge (ALJ) ruled against SCA on August 22, 2002. Following SCA's exceptions to the ALJ's findings, the Board affirmed the decision on April 30, 2003. The legal review of the National Labor Relations Board (NLRB) decision is limited to assessing whether substantial evidence supports the Board's factual findings and if its legal conclusions are reasonable. The NLRB found that SCA violated the National Labor Relations Act (NLRA) by interfering with employee rights under 29 U.S.C. § 157 and by taking adverse action against Sandoval to discourage union activities as prohibited by 29 U.S.C. § 158(a)(1) and § 158(a)(3).
If Sandoval was terminated by SCA due to his union activities, it violates both 29 U.S.C. 158(a)(1) and (3). To prove a discrimination case, the General Counsel must demonstrate that: 1) the employee engaged in protected activity; 2) the decision-maker was aware of it; and 3) the employer acted with anti-union intent. If established, SCA must either refute this evidence or prove it would have taken the same action regardless of the employee's union involvement, as explained in Wright Line, upheld by NLRB v. Transportation Management Corp.
SCA acknowledges that Sandoval engaged in protected activity and that Stievo was aware of it but contests the Board's conclusion of anti-union animus. The determination of an employer's motivation is a factual matter, upheld if backed by substantial evidence. The Board identified four key incidents indicating SCA's motive to terminate Sandoval for his union involvement: 1) Graverson's warning against discussing the union; 2) Stievo instructing Sandoval to remove his union button; 3) Stievo ordering Sandoval to cover his union T-shirt post-termination; and 4) Stievo's comment about Sandoval's "attitude."
SCA contends these actions were simply the enforcement of general policies. However, the Board found SCA did not convincingly demonstrate uniform application of these policies, noting that the prohibition on discussions and the no-jewelry policy were not consistently enforced, particularly regarding other types of jewelry.
The Board's determinations were supported by substantial evidence, indicating selective enforcement of policies indicative of anti-union animus. Prior to and after the campaign, enforcement of these policies was inconsistent. The union could have filed unfair labor practice charges regarding management's actions, such as Graverson's prohibition on union discussions and Stievo's demand for Sandoval to remove his union button, both likely violations of the National Labor Relations Act (NLRA). Although the statute of limitations for filing these charges has expired, the Board could still consider these incidents to understand the motivation behind Sandoval's termination.
Regarding Stievo's actions on the day Sandoval retrieved his personal belongings, the company acknowledged Stievo's conduct but argued for its right to manage workplace disruptions. Stievo characterized his comments as benign advice. However, the Board, supporting the Administrative Law Judge's (ALJ) findings, determined that Stievo's demand to cover the union T-shirt illustrated anti-union animus, and his comments reflected a negative view of Sandoval's pro-union stance. The evidence suggested that Sandoval's presence did not disrupt operations, undermining the company's justification for Stievo's command. The Board reasonably inferred that Stievo's reaction aimed to suppress union sentiments rather than maintain order, and his comments were not innocuous but rather critical of Sandoval's union support.
SCA contends that events occurring after an employee's termination should not influence the assessment of motivation at the time of discharge, arguing that the Board should disregard Stievo's post-termination behavior. The court disagrees, referencing a precedent where post-termination actions indicated pretextual motives for discharge related to anti-union sentiment. The Board's consideration of Stievo's actions and the inferred anti-union animus was deemed appropriate.
The evidence cited by the Board supporting SCA's anti-union motives is substantial and sufficient to conclude that Sandoval was terminated due to his protected activities. The Board accepted the ALJ’s finding that SCA did not successfully counter the General Counsel’s prima facie case or establish the Wright Line affirmative defense. SCA argued that its stated reason for Sandoval's termination was legitimate and that he would have been terminated regardless of any anti-union bias due to policy violations. However, the record shows that other employees with serious misconduct received lesser penalties than termination, raising questions about the consistency of SCA's disciplinary actions.
The ALJ observed that SCA's previous leniency with other employees contrasted sharply with the decision to terminate Sandoval, who had a clean record and long tenure. The ALJ noted Sandoval's responsible actions during the incidents leading to his termination, such as ensuring coverage before leaving early and attempting to obtain permission. The conclusion drawn was that the harsh treatment of Sandoval was likely due to his pro-union stance, with the cited "Code of Conduct" violation serving as a pretext for discrimination. Consequently, SCA failed to demonstrate that Sandoval would have been terminated in the absence of his protected activities.
The ALJ's determination that SCA did not adequately rebut the General Counsel's prima facie case or prove its Wright Line affirmative defense is upheld by substantial evidence. SCA's inconsistent disciplinary practices, particularly in relation to Sandoval, demonstrate disparate treatment. Historical leniency shown to underperforming employees contrasts sharply with the severity of Sandoval's termination, suggesting that the stated justification—a violation of the "Code of Conduct"—was merely a pretext. The case cited examples where SCA applied significantly lighter penalties to other employees for serious infractions, reinforcing the notion of discriminatory enforcement. Consequently, SCA's petition for review is denied, and the Board's order is enforced. Jurisdiction is affirmed under 29 U.S.C. 160(f), noting that SCA's arguments regarding the decision-maker's awareness of Sandoval's union activities were improperly raised and thus waived. Furthermore, the ALJ's credibility findings, favoring Sandoval's testimony over SCA's, remain unchallenged.
