concluding that a paid union organizer was an employee protected by the Act
How later courts described this case
- concluding that a paid union organizer was an employee protected by the Act
- rejecting Elias without explanation
Written by the judges who cited it.
The opinion
FEINBERG, Circuit Judge
(dissenting):
I cannot agree that there is insufficient evidence to support the Board’s conclusion that the Company violated sections 8(a)(3) and (1) of the National Labor Relations Act (the Act) by discriminatorily refusing to transfer Cecilia Caruona and by discharging her because of her union activities. The facts in the record indicate otherwise.
Caruona originally began work for the Company on the day shift in the assembly *31 department. Her subsequent assignment to the night shift in the molding department was initially on a voluntary basis. The Administrative Law Judge (AU) found that this transfer was a promotion for her (the pay was 70 cents per hour greater) and that she had been a satisfactory employee in the assembly department prior to the transfer. Caruona testified that the fumes and the noise in the new job “got me sick,” and the AU obviously believed that her request to transfer out of that job was for medical reasons. The ALJ found that after the Company became aware of Caruona’s union activities, it insisted that she remain in the molding department even though the employee she was supposed to assist there allegedly did not want to work with her and the Company charged that she could not handle the expensive molding equipment.
The majority bases its decision on the Board’s failure to establish that the Company previously had treated non-union employees who requested transfers for medical reasons differently from Caruona. However, the Board may infer anti-union animus from a variety of types of evidence, and proof of different treatment of similarly situated employees is not absolutely necessary. See, e. g., NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 464-65 (2d Cir. 1973); NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 712-13 (2d Cir. 1969). In the main case relied upon by the majority, NLRB v. Park Edge Sheridan Meats, Inc., 341 F.2d 725 (2d Cir. 1965), the panel indicated that the employer’s past treatment of similarly situated employees might be the most conclusive proof in a discriminatory discharge case. However, the court also went on to state:
In the many cases where no such proof is tendered, the General Counsel must at least provide a reasonable basis for inferring that the permissible ground alone would not have led to the discharge, so that it was partially motivated by an impermissible one.
Id. at 728 .
This is one of the “many cases” where there was no evidence before the Board that the Company had previously faced a similar situation. • Thus the AU and the Board could look to other evidence to determine how the Company would have treated a request for transfer, based upon medical reasons, from a non-union employee. There is evidence in the record that the Company had in the past shown concern over its employees’ health and that it had been flexible in transferring employees between the two departments. Indeed, the Company had applied its generally flexible policies to Caruona before it discovered that she was a leading union member and organizer. Thus, the AU and the Board could properly have found that soon after the Company found out about Caruona’s union activities, it departed from its usual flexible policies regarding transfer and concern for employee health, previously applied to Caruona, by refusing her request for transfer, based upon job-related illness — all this after promoting her out of the department to which she requested return. The AU and the Board thus concluded that the Company gave Caruona “a Hobson’s choice — either continue in an onerous job or be fired — because of [the Company’s] recently acquired knowledge of [Caruona’s] union activities.” On this record, and applying the doctrine that the Board’s rulings on motivation “cannot lightly be overturned,” NLRB v. Advanced Business Forms Corp., supra, 474 F.2d at 464 , I conclude that the Board has met its burden of providing “a reasonable basis for inferring that . . the discharge . . . was partially motivated by an impermissible [anti-union ground],” NLRB v. Park Edge Sheridan Meats, Inc., supra, 341 F.2d at 728 .
Therefore, I dissent from the majority’s holding that there was insufficient evidence of a violation of sections 8(a)(3) and (1) of the Act. 1
. I agree with the majority that on these facts Caruona was an employee protected by the Act.