In Caterpillar Logistics, Inc. v. National Labor Relations Board, 2016 WL 39026407 (6th Cir. July 19, 2016) the Sixth Circuit affirmed the Board’s order which had found Caterpillar had committed several unfair labor practices in the course of a union election. The election at issue occurred on September 27, 2013, when employees at Caterpillar’s Clayton, Ohio facility voted down representation by the UAW by a vote of 229 to 188. The UAW objected to two instances of improper employee interrogation, illegal surveillance, and the improper announcement of employee benefits shortly before the vote. A post-election discharge of an employee was also consolidated with this case.
The first alleged instance of interrogation and improper surveillance occurred in late August 2013, the day after the UAW held its first organizational meeting. The following day at work, a supervisor approached employee Sponsler and asked what he thought about the union. Sponsler told the supervisor that he favored unionization but feared retaliation if the union vote failed. According to Sponsler, the supervisor told him he did not have anything to worry about and upper management already knew everyone who was involved. The second instance of interrogation occurred following a mandatory employer anti-union meeting when a different supervisor approached employee Applin while he was working alone and proceeded to ask what he thought about the meeting and whether he had made a voting decision.
The first alleged instance of an improper employee benefit came at an employee meeting on September 18, when Caterpillar’s general manager announced to employees a one-time $400 safety bonus, which was ultimately paid to employees in December 2013. The second alleged instance of an improper benefit came at the same meeting when Caterpillar management nnounced to employees for the first time that it would be constructing covered smoking shelters in the outside break areas.
The alleged illegal discharge of an employee occurred after the election, arising out of a discussion between the employee and Caterpillar’s general manager at an employee meeting. The meeting was to announce the construction of a guard shack. At the meeting, employee Craft asked what the shack was for and the Caterpillar general manager responded that the shack was “for guards”, eliciting laughter from the other employees. The next day at work, Craft relayed to two coworkers that the union had gained his support stating that he was sick of the way management treated employees. Specifically, he stated “I’m not putting up with it anymore, I’m sick of it, that motherf***er is going down now, the gloves are f***ing off now”. After the incident was reported to Human Resources, Craft was terminated.
Regarding the interrogation, the court noted that coercive interrogation of employees about union activities constitutes an unfair labor practice, and the basic test for evaluating the legality of interrogation is whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the NLRA. In this situation, the court held that with respect to both interrogations, the evidence supported that the questioning amounted to coercive interrogation based upon the background of the exchange, in that it occurred after union-related meetings and the employees’ union support had been private; the nature of the information sought, in that the supervisors had clearly sought the employees’ position on the union; the fact that the questioners were supervisors and that the interrogation occurred on the work floor while the employees were alone and therefore likely felt more vulnerable than if surrounded by peers.
Concerning the issue of surveillance, the court noted that a finding of actual surveillance is not required but rather whether an employer has created an impression of surveillance where the employee would reasonably assume from the statement that their union activities had been placed under surveillance. With respect to the supervisor’s statement to Sponsler that upper management knew everyone that was involved, this reasonably created an impression that protected activity had been improperly surveilled.
With respect to the conferral of a benefit to employees in the midst of a union election, the court noted that the promise or providing of a benefit to employees during the election typically amounts to coercion, and thereby an unfair labor practice. With respect to the safety bonus, Caterpillar argued that it had announced the safety bonus prior to the election in March or July 2013. However, the proof established that at most Caterpillar had announced at that time that it might apply for the bonus, without indicating if or when the application might be made. The court concluded that since employees were told for the first time, nine days before the election, that they would be receiving the bonus it was reasonable to conclude that the bonus had been granted for the purpose of influencing the employees’ vote in the election and was reasonably calculated to have that effect. The court went on to state that even if the bonus was warranted for business reasons, Caterpillar could not provide a legitimate business reason for the timing of the announcement in order to rebut the presumption that the announcement of the bonus was impermissibly coercive.
Regarding the promise of constructing smoking shelters, the court observed that the shelters were a solution to a problem that Caterpillar employees had complained of for a long time, yet were announced for the first time shortly before the election. The court held that any argument that there was a legitimate business reason for the announcement was rebutted by the fact that the shelters were not constructed until March of the following year.
Finally, with respect to the discharge of employee Craft, the court noted that while an employee who engages in abusive misconduct during otherwise protected activity may lose protection of the Act, that depends upon a balancing of four factors: (1) the place of the discussion between the employee and the employer; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. In evaluating these factors, the court found that Craft had not lost protection of the Act in view of the fact that any work disruption was for a very brief period of time and the person to whom it was directed was not present when the remarks were made. Moreover, the court noted that the statement was not accompanied by any threatening gestures. The court concluded that Craft’s outburst to his colleagues was an expression of union support and a complaint about perceived working conditions and while crudely stated, it was not threatening. Accordingly, the court affirmed the Board’s order reinstating Craft and setting aside the representation election and ordering a new one.