2d Circuit confirms employee was fired in retaliation for union activity

It is against the law for an employer to retaliate against an employee for her union activity. If the employee thinks she was fired for this reason, she can take her claim to the National Labor Relations Board, which will hold a hearing and issue a determination. If the employee wins the hearing, the employer can challenge that finding in federal court, which gives the NLRB some deference in its fact-finding. That is what happened here.

The case is Parkview Lounge, LLC v. National Labor Relations Board, a summary order issued on October 25. Davis was the employee. The NLRB said that management fired Davis for participating in union activity, and it ordered her reinstatement and backpay. Management says Davis was fired for cause.

The legal standard guiding federal court review of NLRB rulings is whether "its legal conclusions have a reasonable basis in law" and the factual findings are "supported by substantial evidence." Pay close attention to the standard of review. "Reasonable basis in law" does not mean the NLRB's legal analysis has to be ironclad and airtight. It means the legal analysis has to be "reasonable," a lower standard. And "substantial evidence" is lower than the "preponderance of the evidence" standard governing civil lawsuits, which is a 51 percent probability that the plaintiff is correct. "Substantial evidence" is lower than 51 percent, so long as the factual conclusions are still persuasive and stem from some evidence in the record. These lower standards of proof give the NLRB more leeway and discretion to manage the workplace based on its expertise.

This all means as follows: (1) the NLRB had a factual basis to find that management fired Davis because he took part in a union meeting. Management says the decisionmaker, Packin, did not know about Davis's protected activity. But the record shows that

according to Davis’s testimony, Ray Quiñones, a Parkview manager who was present at the January 27 meeting, gave a direct response to the staff and assured employees that he would relay to Packin the workplace concerns that Davis raised there. Geoffrey Daley, another manager present at the January 27 meeting, testified that he informed Packin about Davis’s comments at the January 27 meeting before she was terminated. This evidence, taken within the context of the record as a whole, adequately supports the Board’s conclusion that Packin knew of Davis’s protected concerted activity when he discharged her."

This is not a conjectural inference but a rational one, the Second Circuit (Walker, Carney and Koeltl [D.J.]) concludes.

What about retaliatory motive? Substantial evidence supports the NLRB's findings as the motive, as well. Davis was fired only two days after she attended the meeting. "Although Parkview contends that the Board afforded the timing undue weight, the Board was entitled to treat the brief two-day interval as probative of retaliatory animus." And, the evidence supports the NLRB's finding that management gave a false reason for Davis's termination. While management said Davis was unable to work with management,

The record demonstrates that, in different contexts, Parkview gave inconsistent reasons for Davis’s termination and that Davis had been praised for her work not long before she was shown to the door. Davis testified, and Parkview did not challenge the assertion, that Packin told her she was being terminated because she did not “get[] along with management.” In its official report to the New York State Department of Labor, Parkview gave “issues with service,” in addition to management issues, as a reason for Davis’s termination. Moreover, these stated reasons were at odds with the compliments Packin and another manager had given Davis just one week before her discharge: that she “was one of the stronger servers.” The presence in this record of such inconsistent justifications and assessments justifies the Board’s determination that the employer’s explanation for discharge was pretextual.
Note to plaintiffs: inconsistent or shifting explanations for the employee's discharge is evidence of pretext.

So what about the remedy: backpay and reinstatement. Again, the Second Circuit defers to the NLRB. While management says the National Labor Relations Act says employees cannot be awarded back pay if they were suspended or discharged, and that this means Davis gets nothing because she was fired for cause, the NLRB found, and the Court of Appeals agrees, that while "the record does contain evidence that Davis had conflicts with management and that her performance had been subject to criticism on more than one occasion. But Parkview cites no authority for the proposition that, when the record contains evidence of an employee’s concurrent performance issues or conflicts with management, the Board may not order backpay and reinstatement after determining that an employer engaged in unlawful retaliatory acts with regard to that employee, and we are aware of none."