The National Labor Relations Board accepted an administrative law judge’s finding that
The ruling suggests that merely disputing or challenging an employer’s explanations for firing a union worker won’t show the action was illegal unless there’s also evidence of anti-union hostility.
The U.S. Court of Appeals for the District of Columbia Circuit June 19 set aside an NLRB order that had called on Cellco Partnership, which does business as Verizon Wireless, to reinstate the employee with back pay. Writing for the court, Judge Laurence H. Silberman said the company made a legitimate decision to fire Cunningham and the board’s evidence of an unlawful motive was “woefully inadequate.”
Employee Charged With Lying to Company
Cunningham was active in Communications Workers of America’s successful effort to unionize the company’s Brooklyn, N.Y., stores, and the ALJ said she was a prominent union member who was sought out by other workers.
Another employee, Victory Eshareturi, phoned Cunningham in May 2015, crying and complaining that a manager had angrily confronted her about her handling of a customer transaction. Eshareturi was scheduled to close her store with the manager that night but said she was afraid to be alone with him. Cunningham tried to get advice from union officials, but Eshareturi eventually clocked out and went home without waiting for the manager.
Verizon investigated the incident and initially decided to fire Eshareturi for “walking off the job.” Cunningham at first told Verizon investigators she never advised Eshareturi to leave work, but she eventually admitted to telling the employee she would leave if confronted by the same situation. The company then fired Cunningham for lying about the incident and issued a “final written warning” to Eshareturi for leaving work without permission.
The NLRB largely adopted the decision of its ALJ that Verizon fired Cunningham because of her union activity, but the appeals court rejected several of the judge’s findings.
Silberman said the ALJ relied on a series of text messages in which a manager told Cunningham she was on a company “hit list.” The manager denied the list was related to unions, and Silberman said the reference to a hit list was only “a stray comment by a junior supervisor” who played no part in the decision to fire Cunningham. It had “little significance in measuring evidence of anti-union animus,” the court said.
The appeals court also found that the ALJ erred in citing the length of the employer’s investigation of Cunningham as evidence of an illegal motive. The court said it was Cunningham, not Verizon, who delayed the investigation.
Verizon made “a legitimate business judgment—a not unusual one—that en employee lying during an investigation is a serious threat to management of the enterprise,” the appeals court said.
Attorneys for Verizon Wireless didn’t immediately respond to a request for comment on the decision.
Communications Workers of America represents some Bloomberg Law employees.
NLRB attorneys represented the board. Seyfarth Shaw LLP in Boston represented Cellco Partnership.
The case is Cellco P’ship v. NLRB, 2018 BL 216005, D.C. Cir., No. 17-1158, 6/19/18.