Company Retaliated Against Workers After Union Demands

 

By Jeffrey Rhodes August 13, 2019
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​A unionized crane company in Michigan violated the National Labor Relations Act when its owner fired six crane operators from whom he later asked for help in getting the union to back off its recent demands, the 6th U.S. Circuit Court of Appeals held.

Erickson Trucking Service, headquartered in Grand Rapids, Mich., offers cranes for rent. It owns 36 cranes and sends them with crane operators to construction sites across the country, renting larger, specialized cranes to projects as far away as Texas and Florida.

The company has used union labor since 1923. It employs 20 members of Local 324, International Union of Operating Engineers, to operate forklifts and cranes. The company's owner and sole officer described the company as struggling due to the increased cost of union labor, the rise of the nonunion sector in western Michigan and declining demand for smaller cranes.

In 2015, the local insisted for the first time that only members of the local, not the company's other unions, perform crane-operator work. Additionally, the local's new business representative requested a midterm change in the contract to increase wages by 30 percent to 40 percent, corresponding to the rate recently negotiated by another area union. The local threatened to stop referring union members for temporary labor needs.

Around the same time, the company's operators who were experiencing payroll issues began involving the local's business representative. The company's owner began refusing to deal with him, leading to a grievance. The grievance was settled, but the owner expressed frustration with the local's "bully tactics." The owner then discovered that the local's business representative was approaching the company's customers and encouraging them to hire through the union's referral process rather than contract with the company. The owner cut off all contact with the business representative.

From May to July 2016, the owner fired six members of the local as they completed projects. All six members regularly operated a 40- or 60-ton crane or performed lower-level operator work without an assigned crane. The owner told the fired workers about the lack of work for small cranes and stated that he intended to sell all of his smallest cranes. He also said the terminations could be reversed if the workers would get the union to back off. The owner put six small cranes on the market.

The local filed an unfair labor practice charge claiming that the company unlawfully threatened and discharged the employees based on the union's advocacy. An administrative law judge agreed, as did the National Labor Relations Board (NLRB). The NLRB petitioned the 6th Circuit for enforcement of its order, and the company petitioned for review of the unlawful discharge claim.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

In its appeal, the company argued that the six members fired had not engaged in protected union activity and thus could not assert a retaliation claim. The 6th Circuit disagreed, finding that the company fired the group to discourage union activity in the workplace in general.

The company also argued that it fired the members because the small-crane market had dried up, and it had decided to sell the cranes they operated. However, the 6th Circuit found that the company had been transitioning to larger cranes for more than a decade but had not fired a crane operator until 2016.

In addition, evidence suggested that many of the larger cranes required an oiler to maintain, and two of the fired employees were oilers. The other four employees were certified to operate larger cranes and, according to the company, just needed more experience. The company hired more temporary laborers after the discharges, often to perform the tasks the fired workers performed.

As a result, the 6th Circuit denied the company's petition for review and granted the NLRB's petition for enforcement and ordered reinstatement of the workers.

Erickson Trucking Service Inc. v. National Labor Relations Board, 6th Cir., Nos. 18-2283/2380 (July 10, 2019).

Professional Pointer: Employers must carefully explain termination decisions to employees. Even an otherwise permissible termination will result is a discriminatory discharge claim if the employer attributes its own decision-making to impermissible considerations.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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