Cards Neo (14-CA-267122)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

DATE: July 27, 2021

TO:

William B. Cowen, Regional Director

Region 14

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: CARDS NEO, LLC

Cases 14-CA-267122 & 14-CA-267958

524-0183-6769-0000

524-6788-5000-0000

524-1717-1000-0000

524-6793-1200-0000

524-1783-0150-0000

524-6793-2511-0000

524-3350-6200-0000

524-8384-8331-0000

524-3350-7500-0000

524-8387-7250-0000

524-5029-1216-0000

524-8393-0155-0000

524-6715-3000-0000

524-8393-0188-0000

These cases were submitted for advice as to whether CARDS NEO, LLC

(CNL) violated Section 8(a)(1) of the Act by discharging an employee (Employee 1)

for whom a 911 call was made after becoming ill on the job. We conclude that

Employee 1 did not engage in protected concerted activity involving the 911 call and

that CNL would not have violated Section 8(a)(1) if it had discharged Employee 1

believing

made that call. Instead, we conclude that CNL violated Sections

8(a)(3) and (1) by discharging Employee 1 in retaliation for

union activity. The

Region should also continue investigating and assessing whether other discharged

employees of CNL (Employees 2, 3, and 4) were discriminated against because of

their union activity.

FACTS

The charges initiating these cases were filed by Teamsters Local 823 (Union)

on behalf of Employees 1, 2, 3, and 4, all of whom were employed by CNL between

CNL is a waste management company headquartered in

Tontitown, Arkansas. On

, 2020, it purchased a waste management facility in

Fairland, Oklahoma, buying all the assets at that facility then owned by Bernice

Sanitation (Bernice). Employees 1, 2, and 3 were employed by Bernice before the

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C)

2, 3, and 4, all of whom were employed by CNL between

CNL is a waste management company headquartered in

Tontitown, Arkansas. On

, 2020, it purchased a waste management facility in

Fairland, Oklahoma, buying all the assets at that facility then owned by Bernice

Sanitation (Bernice). Employees 1, 2, and 3 were employed by Bernice before the

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Cases 14-CA-267122 & 14-CA-267958

- 6 -

it are precluded from being concerted action for mutual aid or protection. Without

that, no violation of Section 8(a)(1) of the Act could occur.3

II.

CNL Discharged Employee 1 in Retaliation for

Union

Activity.

Whenever an employer’s motive for acting adversely against an employee is

disputed, Wright Line4 controls the analysis of whether the adverse action was an

unfair labor practice.5 To prove that any such action violated Sections 8(a)(3) and

(1) of the Act, the General Counsel must make an initial showing that union or

other protected activity was a motivating factor in the employer’s decision to impose

the action.6 The elements of proof required to support such a showing are (i) union

or other protected activity by an employee, (ii) the employer’s knowledge of that

activity, and (iii) antiunion animus motivating the employer’s adverse action

against the employee.7 The third element is met only if a causal relationship is

shown to exist between the adverse action and the protected activity.8 Assuming

the General Counsel satisfies each such element by a preponderance of evidence,9

the employer then bears the burden of rebutting the General Counsel’s initial

showing by demonstrating its adverse action was taken for permissible reasons that

would have led to the action being imposed even in the absence of the protected

3 See Montgomery Hospital, 233 NLRB 752, 754-55 (1977)

vity.8 Assuming

the General Counsel satisfies each such element by a preponderance of evidence,9

the employer then bears the burden of rebutting the General Counsel’s initial

showing by demonstrating its adverse action was taken for permissible reasons that

would have led to the action being imposed even in the absence of the protected

3 See Montgomery Hospital, 233 NLRB 752, 754-55 (1977). Additionally, CNL never

asserted that Employee 1 was discharged for failing to drive the truck back to the

facility, so we need not determine whether that constituted protected concerted

activity.

4 251 NLRB 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981),

cert. denied, 455 U.S. 989 (1982), later approved in NLRB v. Transp. Mgmt. Corp.,

462 U.S. 393, 399-403 (1983).

5 Austal USA, LLC, 356 NLRB 363, 363 (2010); Roure Bertrand Dupont, Inc., 271

NLRB 443, 443 (1984).

6 Williamette Indus., 341 NLRB 560, 562 (2004).

7 Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 2 (2020); WMUR-TV, 253

NLRB 697, 703 (1980).

8 Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 1, 5, 8-11 (2019).

9 WXGI, Inc. v. NLRB, 243 F.3d 833, 840 (4th Cir. 2001), enforcing 330 NLRB 695

(2000); WMUR-TV, 253 NLRB at 703.

(b) (6), (b) (7)

Cases 14-CA-267122 & 14-CA-267958

- 10 -

too, CNL’s refusal to pay Employee 1’s medical expenses and lost wages exposes its

antiunion animus. The initial reason given for that refusal was Employee 1’s

alleged making of the 911 call. But once the HR Director was forced to acknowledge

Employee 2’s placement of that call, the reason for the refusal shifted to Employee

1’s purported evasion of the drug test.

Fourth, an employer’s antiunion animus may be inferred through the timing

of the adverse action imposed on an employee engaged in union activity.22 Employee

1 had worked for Bernice more than a year prior to CNL’s takeover of the Fairland

facility

d to acknowledge

Employee 2’s placement of that call, the reason for the refusal shifted to Employee

1’s purported evasion of the drug test.

Fourth, an employer’s antiunion animus may be inferred through the timing

of the adverse action imposed on an employee engaged in union activity.22 Employee

1 had worked for Bernice more than a year prior to CNL’s takeover of the Fairland

facility. For

to be discharged within two weeks of disclosing the organizational

campaign to Supervisor 1 and after

had worked

since becoming

a CNL employee was suspicious and precipitous, which are attributes of adverse

action that have been held sufficient to justify inferences of antiunion animus.23

Furthermore, the timing of the adverse action against Employee 1 in close

proximity to

disclosure of the union campaign at the Fairland facility lends

credence to a causal relationship existing between that action and CNL’s antiunion

animus.24

Fifth, and finally, because CNL’s proffered reasons for discharging Employee

1 and refusing to pay

medical expenses and lost wages are possible pretexts,

there exists yet another basis on which CNL’s antiunion animus may be inferred.25

The failure to meaningfully investigate an employer’s proffered reasons for adverse

22 Lucky Cab Co., 360 NLRB at 274; W.F. Bolin Co., 311 NLRB 1118, 1119 (1993),

review denied, 70 F.3d 863 (6th Cir. 1995), enforced mem., 99 F.3d 1139 (6th Cir.

1996); Whitesville Mill Serv. Co., 307 NLRB at 945; Wright Line, 251 NLRB at 1090.

23 NLRB v. Link-Belt Co., 311 U.S. 584, 589 (1941) (employee firing one day after

soliciting authorization cards was precipitous); Birch Run Welding & Fabricating,

Inc., 269 NLRB 756, 765-66 (1984), enforced, 761 F.2d 1175 (6th Cir. 1985) (layoff of

union sympathizers was suspicious based on subsequent hiring of new workers).

24 Toll Mfg., 341 NLRB 832, 833 (2006); Davey Roofing, Inc., 341 NLRB 222, 223

nk-Belt Co., 311 U.S. 584, 589 (1941) (employee firing one day after

soliciting authorization cards was precipitous); Birch Run Welding & Fabricating,

Inc., 269 NLRB 756, 765-66 (1984), enforced, 761 F.2d 1175 (6th Cir. 1985) (layoff of

union sympathizers was suspicious based on subsequent hiring of new workers).

24 Toll Mfg., 341 NLRB 832, 833 (2006); Davey Roofing, Inc., 341 NLRB 222, 223

(2004); Abbey’s Transp. Serv., 284 NLRB 698, 700-01 (1987), enforced, 837 F.2d 575

(2nd Cir. 1988).

25 If CNL’s proffered reasons for its adverse action against Employee 1 are proven to

be pretexts, an additional benefit will have accrued to the General Counsel’s case

besides another avenue for demonstrating CNL’s antiunion animus. CNL would

also be precluded from rebutting the General Counsel’s initial showing of a violation

of Sections 8(a)(3) and (1) of the Act. See note 12 supra and its accompanying text.

(b) (6), (b)

(b) (6), (b)

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C)

Cases 14-CA-267122 & 14-CA-267958

- 12 -

III.

Proving That CNL’s Discharges of Employees 2, 3, and 4

Were in Retaliation for Their Union Activity Requires

Further Investigation and Restoration of Prior Precedent.

A.

The Union Activity of Employees 2, 3, and 4 May Have

Been Imperceptible and Hence Unknown to CNL.

An employee’s union activity can occasionally be so subtle that their employer

is unlikely to perceive that activity or be motivated to discriminate against them

because of it

e in Retaliation for Their Union Activity Requires

Further Investigation and Restoration of Prior Precedent.

A.

The Union Activity of Employees 2, 3, and 4 May Have

Been Imperceptible and Hence Unknown to CNL.

An employee’s union activity can occasionally be so subtle that their employer

is unlikely to perceive that activity or be motivated to discriminate against them

because of it. Discussions about an organizational campaign, without more, have

been found to be minimal union activity unlikely to come to an employer’s attention

or to move that employer to take adverse action against a participating employee.32

The same is true of such discussions when accompanied by nothing more than the

wearing of union insignia33 or the signing of an authorization card.34

Currently, scant evidence exists in the record concerning the involvement of

Employees 2, 3, and 4 in the organizational campaign at CNL’s Fairland facility.

Employee 3 signed an authorization card and solicited Employee 4 to do likewise.

Employee 4 attended a union meeting in addition to signing a card. Employee 2

signed a card and discussed the pros and cons of union representation with

co-

workers. Nothing else is presently known about their union activity. If it has not

already done so, the Region should further investigate that activity to ascertain

whether the actions of Employees 2, 3, and 4 were so minimal as to allow CNL to

successfully argue that such activity was imperceptible and hence unknown to it.

That said, the cases presented here may be distinguishable from those in

which the Board has found employees to have engaged in only minimal union

activity. The Union filed a representation petition in September 2020, and the

Region scheduled a representation election two months later

al as to allow CNL to

successfully argue that such activity was imperceptible and hence unknown to it.

That said, the cases presented here may be distinguishable from those in

which the Board has found employees to have engaged in only minimal union

activity. The Union filed a representation petition in September 2020, and the

Region scheduled a representation election two months later. During such a critical

period, CNL may have been motivated to search for employees at the Fairland

facility who sympathized with the Union to the slightest extent and to attempt to

assure those individuals never became eligible to vote in the upcoming election. If

32 Hotel & Restaurant Employees Int’l Union Local 26, 344 NLRB 567, 572 (2005),

enforced, 446 F.3d 200 (1st Cir. 2006); Custom Cut, Inc., 340 NLRB 120, 121 (2003);

WMUR-TV, 253 NLRB at 698.

33 A.M. Ortega Constr., 349 NLRB 1111, 1120 (2007); Bath Elec., 233 NLRB 762,

763-64 (1977).

34 Keller Mfg., 237 NLRB at 721-22.

(b) (6), (b

Cases 14-CA-267122 & 14-CA-267958

- 13 -

further investigation by the Region confirms such a possibility or others like it,

Wright Line’s first two elements could be satisfied with respect to Employees 2, 3,

and 4.

B.

CNL’s Discharge of Employees 2, 3, and 4 May Have Been

Motivated by CNL’s Antiunion Animus.

Evidence in the record which indirectly supports the inference that CNL’s

discharge of Employees 2, 3, and 4 was motivated by antiunion animus involves the

disparate manner in which they were disciplined in comparison to their co-workers.

Employees 2 and 4 were apparently the only Fairland employees of CNL who were

fired for accumulating too many points under the attendance policy. Employee 5,

for instance, had missed work enough times such that

would have “pointed out”

under that policy were it not for those absences being excused by

supervisor

rate manner in which they were disciplined in comparison to their co-workers.

Employees 2 and 4 were apparently the only Fairland employees of CNL who were

fired for accumulating too many points under the attendance policy. Employee 5,

for instance, had missed work enough times such that

would have “pointed out”

under that policy were it not for those absences being excused by

supervisor.

Likewise, Employee 3 seems to have been the only Fairland worker who was the

object of CNL’s enforcement of its cell phone rule. And the progressive disciplinary

policy was not observed with respect to any of them. The Board has long recognized

that disparate treatment in the exercise of disciplinary measures is a ground for

inferring antiunion animus as a motivating factor for adverse action.35 Because the

current evidence of those disparities is sparse, however, the Region will have to

expand on that evidence before being able to rely on such a strategy.

Other evidence, though, bears the potential of directly proving that antiunion

animus motivated CNL’s discharges of Employees 2, 3, and 4. Following the

Union’s filing of a representation petition, Supervisor 2 interrogated Employee 5

concerning the organizational campaign, asking

about the identity of the CNL

employee at the Fairland facility who assumed responsibility for the campaign after

Employee 1’s discharge. When

received no substantive reply, Supervisor 2 made

disparaging remarks about the campaign and the Union. Also troubling, though not

evidence upon which we would rely, is the conversation between our Field Examiner

and CNL’s CEO, wherein the latter contemplated closing the Fairland facility to

avoid a representation election

responsibility for the campaign after

Employee 1’s discharge. When

received no substantive reply, Supervisor 2 made

disparaging remarks about the campaign and the Union. Also troubling, though not

evidence upon which we would rely, is the conversation between our Field Examiner

and CNL’s CEO, wherein the latter contemplated closing the Fairland facility to

avoid a representation election.

Finally, and in the event upon the further investigation and consideration

referred to above the Region determines to issue complaint on the discharges of

Employees 2, 3 and/or 4, it should rely on Supervisor 2’s remarks above as evidence

of anti-union animus notwithstanding that they may not independently violate

Section 8(a)(1). Before 2020, the Board had consistently held for more than 50

years that antiunion statements could be evidence of employer animus even if the

35 NLRB v. Transp. Mgmt. Corp., 462 U.S. at 396-97, 404; Stoody Co., 312 NLRB at

1178, 1182-83; Farm Fresh, Inc., 301 NLRB at 908; Wright Line, 251 NLRB at 1090-

91.

(b) (6),

(b) (6), (

(b) (6), (b) (7

(b) (6), (b)

Cases 14-CA-267122 & 14-CA-267958

- 14 -

statements did not independently violate the Act and were protected by Section

8(c).36 That section provides that “[t]he expressing of any views, argument, or

opinion, or the dissemination thereof, whether in written, printed, graphic, or visual

form, shall not constitute or be evidence of an unfair labor practice . .

) (6), (b) (7

(b) (6), (b)

Cases 14-CA-267122 & 14-CA-267958

- 14 -

statements did not independently violate the Act and were protected by Section

8(c).36 That section provides that “[t]he expressing of any views, argument, or

opinion, or the dissemination thereof, whether in written, printed, graphic, or visual

form, shall not constitute or be evidence of an unfair labor practice . . . if such

expression contains no threat of reprisal or force or promise of benefit.”37 Recently,

however, the Board changed position in United Site Services,38 overruling its earlier

decisions and siding with those courts that have held Section 8(c) contains a “clear

statutory command” precluding the use of noncoercive statements as evidence of

antiunion animus.39

The Region should urge the Board to overrule United Site Services and return

to its earlier and long-standing position that lawful speech under Section 8(c) can be

36 Overnite Transportation Co., 335 NLRB 372, 375 n.15 (2001) (lawful employee

handbook was further indicative of animus); Mediplex of Stamford, 334 NLRB 903,

903 (2001) (“well-established Board precedent hold[s] that while protected speech,

such as an employer’s expression of its views or opinions against a union, cannot be

deemed a violation in and of itself, it can nonetheless be used as background

evidence of antiunion animus on the part of the employer); Affiliated Foods, Inc.,

328 NLRB 1107, 1107 (1999) (language about unions in employee handbook,

“although alone not rising to the level of unfair labor practices, may still be used to

show animus”); Stoody Co., 312 NLRB at 1182 (“policy statement on unions may

fairly be considered as antiunion animus supporting a finding of discriminatory

motivation”); Gencorp, 294 NLRB 717, 717 n.1 (1989) (rejecting employer’s

contention that statements protected by Section 8(c) cannot be used to support

background antiunion animus since “the Board has consistently held that conduct

that may not be found violative of the Act may

2 (“policy statement on unions may

fairly be considered as antiunion animus supporting a finding of discriminatory

motivation”); Gencorp, 294 NLRB 717, 717 n.1 (1989) (rejecting employer’s

contention that statements protected by Section 8(c) cannot be used to support

background antiunion animus since “the Board has consistently held that conduct

that may not be found violative of the Act may still be used to show antiunion

animus”); General Battery Corp., 241 NLRB 1166, 1169 (1979) (animus established,

in part, based on meetings where employer presented slides and newspaper

clippings depicting union corruption and violence); Sun Hardware Co., 173 NLRB

973, 973 (1968) (while “remark of the [employer’s] president . . . to the effect that he

did not want a union in the plant, did not violate Section 8(a)(1) of the Act . . . such

comment does show antiunion animosity”), enforced, 422 F.2d 1296 (9th Cir. 1970).

37 29 U.S.C. §158(c) (West 2021) (emphasis added).

38 369 NLRB No. 137, slip op. at 14 n.68 (2020).

39 Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106, 1112 (D.C. Cir. 2002); Medeco Sec.

Locks, Inc. v. NLRB, 142 F.3d 733 (4th Cir. 1998); BE & K Constr. v. NLRB, 133

F.3d 1372 (11th Cir. 1997) (per curiam); and Holo-Krome Co. v. NLRB, 907 F.2d

1343 (2d Cir. 1990).

Cases 14-CA-267122 & 14-CA-267958

- 15 -

indicative of antiunion animus. To that end, it should first be argued that relying

on speech protected under Section 8(c) does not treat that speech as “evidence of an

unfair labor practice.” Such reliance simply assists the Board in assessing an

employer’s motivation, which is only one element necessary to proving an unfair

labor practice.40 In this regard, it is significant that Wright Line does not describe

the required element of antiunion animus as capable of being proven solely through

unlawful or coercive acts or statements

peech as “evidence of an

unfair labor practice.” Such reliance simply assists the Board in assessing an

employer’s motivation, which is only one element necessary to proving an unfair

labor practice.40 In this regard, it is significant that Wright Line does not describe

the required element of antiunion animus as capable of being proven solely through

unlawful or coercive acts or statements. Quite the contrary, in Wright Line the

Board found that the employer displayed animus toward the employee against

whom adverse action was taken based in part on the “tone of the [employer’s

antiunion] campaign.”41

Next, it should be argued that taking lawful speech into account in assessing

an employer’s motivation is consistent with the Board’s reliance on other employer

actions that are not unlawful in and of themselves to infer antiunion motivation—

e.g., the timing of adverse action, disparate treatment, shifting defenses, and the

pretextual nature of an employer’s proffered reasons for adverse action.42 Requiring

statements expressive of antiunion animus to be independent violations of Section

8(a)(1) before they can be used to prove such animus amounts to treating them

differently than all other types of evidence probative of antiunion animus,43 which

cannot be justified under the Act.

Lastly, it should be argued that the Board is not bound to follow those courts

of appeal that have disagreed with its prior approach, especially given that Section

8(c)’s meaning is ambiguous and open to differing interpretations.44 Indeed, other

40 Wright Line, 251 NLRB at 1087.

41 Id. at 1090.

42 See section II,C of this memorandum, supra.

43 The Region should not rely on certain statements in the legislative history by

Senator Robert Taft because his comments are too ambiguous to persuasively

support the Board’s prior approach. See Committee on Labor and Public Welfare,

Legislative History of the Labor Management Relations Act, 1947 (1974), at

1545

t 1087.

41 Id. at 1090.

42 See section II,C of this memorandum, supra.

43 The Region should not rely on certain statements in the legislative history by

Senator Robert Taft because his comments are too ambiguous to persuasively

support the Board’s prior approach. See Committee on Labor and Public Welfare,

Legislative History of the Labor Management Relations Act, 1947 (1974), at

1545. See also Rebecca Hanner White, The Statutory & Constitutional Limits of

Using Protected Speech as Evidence of Unlawful Motive under the National Labor

Relations Act, 53 Ohio St. L.J. 1, 23-24 (1992) (describing Taft’s contradictory

remarks).

44 White, 53 Ohio St. L.J. at 18-25 (arguing that Section 8(c) does not reflect clear

and unambiguous congressional intent and that the Board’s prior approach was a

permissible construction of the statute).

Cases 14-CA-267122 & 14-CA-267958

- 16 -

circuits have agreed with the Board’s consideration of uncoercive expressions of

antiunion sentiment as evidence of antiunion animus.45

CONCLUSION

Sufficient evidence exists in the record to issue complaint against CNL

alleging that it violated Sections 8(a)(3) and (1) of the Act by discharging Employee

1 in retaliation for

union activity. The 911 call made on

behalf was not

protected concerted activity and therefore should not be relied upon as the basis for

a Section 8(a)(1) violation. Additionally, if further investigation reveals that CNL

knew about union activity on the part of Employees 2, 3, and 4, complaint should

also issue against CNL for discharging those individuals. To prove that CNL

harbored antiunion animus against them, it should be argued that prior precedent

of the Board must be restored so that antiunion statements can once again be

admitted as evidence of employer animus even if those statements are protected

under Section 8(c) and do not constitute independent violations of the Act.

/s/

R.A.B.

ADV.14-CA-267122.Response.Cards Neo

45 NLRB v

that CNL

harbored antiunion animus against them, it should be argued that prior precedent

of the Board must be restored so that antiunion statements can once again be

admitted as evidence of employer animus even if those statements are protected

under Section 8(c) and do not constitute independent violations of the Act.

/s/

R.A.B.

ADV.14-CA-267122.Response.Cards Neo

45 NLRB v. Vemco Inc., 989 F.2d 1468, 1473-75, 1477 (6th Cir. 1993) (rejecting other

circuit courts’ reading of the “plain meaning of [Section 8(c)] filtered through a

narrow, but plausible, reading of the legislative history” and concluding that

protected speech may be relied upon “as background in our determination of

animus” in the context of a discriminatory layoff); Orchard Corp. of Am. v. NLRB,

408 F.2d 341, 342 (8th Cir. 1969) (per curiam) (“An employer’s background of

‘strong anti-union posture’ may properly be considered to determine the probable

effects on employees of particular acts of the employer.”); Hendrix Mfg. v. NLRB,

321 F.2d 100, 103 (5th Cir. 1963) (lawful pre-election speech in which employer

“made no bones about its opposition to the [u]nion . . . is properly ‘background’

against which to measure statements, conduct, and the like made by other

management spokesmen”).

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C