finding that employment application which stated that “false information, omissions, or misrepresentations may result in a discharge of the employee” was insufficient to establish that the plaintiff would have been discharged for conduct at issue, and that company policy manual specifying that falsification of records would warrant immediate dismissal was immaterial where manual had not been distributed to employee prior to employee’s termination (emphasis added)
How later courts described this case
- finding that employment application which stated that “false information, omissions, or misrepresentations may result in a discharge of the employee” was insufficient to establish that the plaintiff would have been discharged for conduct at issue, and that company policy manual specifying that falsification of records would warrant immediate dismissal was immaterial where manual had not been distributed to employee prior to employee’s termination (emphasis added)
- affirming Board's unfair labor practice finding because "[a]lthough [the employer's] interpretation of evidence may be reasonable, the Board's finding to the contrary was supported by substantial evidence"
- if policy gives employer “potential option” to dismiss employee for certain misconduct, employer must “provide! ] ... evidence that its practice has been to dismiss employees for similar [misconduct]”
- “[E]vidence that an employer has [committed unfair labor practices] can support an inference of anti-union animus.”
Written by the judges who cited it.
The opinion
KAREN LeCRAFT HENDERSON, Circuit Judge,
dissenting:
I would grant the petition for review for the reasons expressed so convincingly by the dissenting member of the National Labor Relations Board. John Ramirez repeatedly pestered the same employees while they were trying to perform their jobs, as many as four times in a single day and once almost to the point of a physical fight. This was not protected activity but harassment.. His fellow employees were under no duty, as the majorities of this panel and of the Board seem to think, to inform Ramirez he was disturbing their work. That should have been, and surely was, as obvious to him as it was to them. As the dissenting Board member noted, Ramirez’s discharge did not violate section 8(a)(1) or (3) of the National Labor Relations Act because the employer “was lawfully responding to multiple complaints from multiple employees regarding Ramirez’ repeated harassment of them during worktime about the Union.” Frazier Indus. Co., 328 N.L.R.B. No. 89, slip op. at 59 (1999) (footnote omitted). Further, “even assuming that the General Counsel has established a prima facie showing that Ramirez’ protected conduct was a motivating factor in his discharge, the Respondent has met its burden of showing that the discharge would have occurred even in the absence of protected activity.” Id. (citing Wright Line, 251 N.L.R.B. 1083 (1980), enf'd., 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989 , 102 S.Ct. 1612 , 71 L.Ed.2d 848 (1982)). Accordingly I dissent.