The federal appellate court with jurisdiction over South Carolina employers recently ruled against a nonunion employer who fired an employee for dishonesty after he started distributing union materials. According to the Fourth Circuit Court of Appeals, there was sufficient evidence that the employer, which did not thoroughly investigate the dishonesty allegation, was motivated by anti-union animus. Integrated Electrical Services, d/b/a Primo Electric v. NLRB, No. 05-2289, No. 05-2411, Fourth Circuit Court of Appeals (February 13, 2007).

Factual Background

William Hughes, a licensed master electrician, was looking for work through the International Brotherhood of Electrical Workers, AFL-CIO. Since he was still low on the wait list after several months, Hughes decided, after being prompted by a union officer, to apply for a job at Primo Electric at least in part to attempt to organize Primo Electric electricians and to influence Primo Electric to become a union contractor. Hughes attended classes at the union hall to learn effective and lawful “salting” techniques (including keeping a daily log and refraining from handing out union literature during work hours or at the work site).

Hughes started working for Primo Electric on August 11, 2003. On August 26, he did not report to work or call to explain his absence. The next day, Hughes arrived at work wearing a union t-shirt which among other things stated, “Ask me about my union.” Hughes’ foreman, Mike Gunzelman, did not know that Primo Electric’s dress code only applied to workers in the service department and requested that Hughes remove the shirt. When Hughes refused, Gunzelman sent him home. He later received a call from a Primo Electric employee who apologized for the foreman’s action and told him that he would be paid for the work day. Hughes was also assured that he could wear his union shirt at work. He wore his union shirt every day thereafter.

On September 3, Primo Electric’s Human Resources Director, Darcia Perini, asked Hughes whether he would be interested in an office position. Hughes responded that he preferred to work in the field. Around the same time, Hughes began increasing his salting activities. He spoke with co-workers about the union and the benefits it might offer them. He also gave some co-workers a DVD which outlined the wages a union electrician could expect to receive. He distributed these materials in the parking lot before work. One worker, Clayton Bester, alerted Primo Electric officials that Hughes gave him the DVD on the job site during work hours. When Perini confronted Hughes with the allegation that he had violated Primo Electric’s no-solicitation policy, Hughes demanded to know his accuser’s name. Hughes denied the allegation and Perini informed him that Primo Electric was terminating him for lying.

The union filed an unfair labor practices charge against Primo Electric with the National Labor Relations Board (NLRB) challenging this action. The administrative law judge (ALJ), and later the NLRB, ruled that Primo Electric was motivated by anti-union animus when it fired Hughes. Primo Electric then appealed this decision to the Fourth Circuit Court of Appeals.

Legal Analysis
The Fourth Circuit held that the NLRB’s order must be enforced if the ALJ’s findings were supported by substantial evidence. In concluding that Primo Electric was motivated by anti-union animus, the ALJ had credited Hughes’ testimony over Primo Electric’s. According to the ALJ, Primo Electric’s witnesses testified inconsistently regarding Hughes’ distribution of the union materials. The ALJ also pointed to Primo Electric’s anti-union policy, which stated: “Unions have provided none of the salaries and benefits at Primo Electric, and it is not expected that they will help improve any benefits in the future.” Finally, the ALJ noted that Primo Electric moved Hughes away from working with other electricians after he started wearing his union shirt and offered him an office position.

The ALJ also found problems with Perini’s testimony that Primo Electric treated similarly situated employees consistently as it had other fired workers for dishonesty. The ALJ noted, however, that Perini admitted that she had conducted more extensive investigations in those cases. Since Perini never attempted to speak with the named witness and also withheld the accuser’s name (despite having provided such information in prior sexual harassment cases), the ALJ ruled that Primo Electric’s allegedly legitimate reason for firing Hughes was actually a pretext for unlawful anti-union action.

The Fourth Circuit noted that Primo Electric had argued that Hughes was a “lazy” worker and a “troublemaker” and that it had many reasons, other than his dishonesty, to terminate him. However, since Primo Electric only gave dishonesty as its reason for firing Hughes, the court concluded that these arguments regarding his general performance were irrelevant. Because there was substantial evidence that Primo Electric fired Hughes based on his protected union activity, the Fourth Circuit upheld the NLRB’s order.

Practical Impact

According to Mark Stubley, a shareholder in Ogletree Deakins’ Greenville office: “The result of this case is not surprising. As too many employers have learned, once an ALJ makes a credibility determination – all too frequently against the employer – it is virtually impossible to get that finding overturned. Any termination of an employee in circumstances involving salting activities will be reviewed with scrutiny and skepticism. The employer must make sure that it not only has a powerful case from a factual point of view, but also that it can overcome a very likely finding of anti-union animus. As here, immediate termination for a ‘he said-she said’ situation may not pass scrutiny – especially where there is a history of attempts to terminate the individual. A ‘gotcha’ mentality will likely backfire.”