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December 5, 2017
  S. Freedman & Sons, Inc. v. National Labor Relations Board -- Fourth Circuit
He'll Be Back: Court Affirms NLRB Decision That Employer Wrongfully Terminated Union Employee

Areas of Law: Employment Law, National Labor Relations Act

Issue Presented: Whether an Administrative Law Judge properly found that the employer, S. Freedman & Sons, Inc. violated the National Labor Relations Act's prohibitions on (1) discriminating against an employee for engaging in protected activity, and (2) interfering with an employee's exercise of his rights under the Act, in its actions against the employee, Richard Saxton.

Brief Summary: Richard Saxton was an employee of S. Freedman & Sons, Inc. In 2014, Saxton was terminated, reinstated, and terminated again. Both terminations were just days before scheduled hearings on grievances Saxton had filed against the company. An Administrative Law Judge (ALJ) found the employer had violated the National Labor Relations Act (the Act) in its disciplining of Saxton. The employer petitioned for review of this decision, but the Fourth Circuit affirmed the ALJ decision, thereby denying the employer's petition for review and granting the NLRB's cross-application for enforcement.

Extended Summary: S. Freedman & Sons, Inc. is a mid-Atlantic paper supplier, and in 2014 the company had 128 employees, including 28 delivery drivers. The delivery drivers and warehouse workers had been represented by a union for 50 years, and entered into a collective bargaining agreement (CBA) in 2013. Saxton, an employee of 26 years, had served as chief union steward for 17 of those years, representing employees in collective bargaining negotiations and when they had grievances with the company.

Saxton was involved in multiple grievances with the company from 2013-2014, including a termination in 2013 for his involvement in a traffic accident in a company vehicle. On July 1, 2014, a week before a hearing to address his job performance, Saxton told a supervisor he could not come to work that day, because he needed "to get a [driver's] license." The employer thought Saxton's license expired June 27, 2014, so the company investigated to learn if Saxton had driven a company vehicle with an expired license. Saxton and his union representative met with the company president and a human resources representative on July 2. The employer stated in the court record that Saxton admitted at the meeting to driving with an expired license. Saxton refuted this, and said he explained he had lost his license on June 30, and needed to miss work on July 1 to get a duplicate. On July 2, Saxton and a union representative met with the president and a human resources representative to explain that he had renewed his license before the June 27, 2014 expiration, lost his license on June 30, and received a duplicate on July 1. The president, who was investigating whether Saxton had driven a company vehicle with an expired license, refused to look at the paperwork which confirmed the license was a duplicate. Later that day, the employer got records from the Motor Vehicle Administration that corroborated Saxton's account of events, but the president still chose to terminate Saxton on July 3.

Saxton and his union business agent participated in a grievance meeting with the employer on July 8, but the president of the company did not accept Saxton's version of events, despite the company's own investigator confirming them. In a July 17 submission to the Maryland Department of Labor, the employer wrote that its "investigation confirmed Saxton knowingly drove his company truck without a valid driver's license." However, on July 23, the company informed the union that Saxton's termination was being retroactively changed to an unpaid suspension, claiming that Saxton was not entitled to compensation for the time he was off work because he "was dishonest during the employer's investigation." The union filed grievances.

On September 29, a week before a new scheduled hearing on prior grievances, Saxton returned to the warehouse to clock out, when a supervisor asked him to drive a truck to a repair shop. Since Saxton had already worked eight-hours and was the most senior driver, he was not required to accept overtime if other junior drivers were available according to the CBA. After presenting the supervisor with a copy of the CBA and the president becoming involved, Saxton still refused. The president then told him to "punch out and don't come back tomorrow." After the union president discussed it with the company president, Saxton was told to return to work the next day by his union president. Saxton went to work every day until October 2, when the president of the company gave him a letter terminating his employment. The labor relations board then filed a complaint on Saxton's behalf, and the ALJ found the employer violated the Act by disciplining Saxton for engaging in protected activities and participating in Board proceedings.

Under the Act, an employer engages in an unfair labor practice if the employer "discharge[s] or otherwise discriminate[s] against an employee because he has filed charges or given testimony." To present a case of retaliation, the Board, on behalf of the employee, must show "(1) that the employee was engaged in protected activity, (2) that the employer was aware of the activity, and (3) that the protected activity was a substantial or motivating factor for the employer's action." Saxton's employer did not dispute the first two prongs of this test, but relied on the argument that his protected activity was not a motivating factor in the termination. The ALJ found that testimony from company representatives "lacked credibility" and the record included significant evidence that the employer had notice before termination of Saxton having timely renewed his license and the one at issue being a duplicate. Despite this evidence, the employer persisted in contending Saxton had lied long after that claim was discredited.

Also under the Act, an employer engages in an unfair labor practice if the employer "interefere[s] with, restrain[s], or coerce[s] employees in the exercise of the rights guaranteed in" the act, which cover rights to organize and collective bargaining. An employee's conduct is considered "concerted activity" if conduct is based on "a reasonable and honest belief that [the employee] is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right." Saxton made a copy of the CBA available to his supervisor when refusing to take the overtime shift and the record showed there were three more junior drivers available to perform the task, one of whom eventually did.

To read the full opinion, click here.

Panel: Judges Kennan and Wynn, Judge Gibney, United States District Judge for the Eastern District of Virginia, sitting by designation.

Argument Date: 09/12/2017

Date of Issued Opinion: 11/07/2017

Docket Number: 16-2066, 16-2270

Decided: Petition for review denied, cross-application for enforcement granted by unpublished per curiam opinion.

Case Alert Author: Hannah Catt, Univ. of Maryland Carey School of Law

Counsel: Scott V. Kamins, OFFIT KURMAN, P.A., Maple Lawn, Maryland, for
Petitioner/Cross-Respondent. David A. Seid, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent/Cross-Petitioner. John R. Mooney,
Intervenor. ON BRIEF: Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo,
Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Lauren P. McDermott, MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C., Washington, D.C., for Intervenor.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/05/2017 01:05 PM     4th Circuit  

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