Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 6, 2022, the National Labor Relations Board published its decision in Southwest Regional Council of Carpenters, 371 NLRB No. 112, adopting the administrative law judge’s (ALJ) decision that a carpenters’ union did not unlawfully lay off two employees who raised concerns about safe working conditions during the COVID-19 pandemic.
A three-member panel for the Board opined that the employees’ layoffs were not connected to the employees’ protected activities and that the carpenters’ union, Southwest Regional Council of Carpenters (the “Council”), did not violate the National Labor Relations Act in laying off the employees.
The Council hired one employee as a business or special representative in April 2016. The second employee was hired as a business representative in May 2017. The second employee was also elected as president of United Brotherhood of Carpenters and Joiners of America Local 1977, the entity that charters the Council, and was a delegate to the Council.
In response to COVID-19, the Council instituted new policies to reduce potential exposure and to mitigate any outbreaks. For example, some employees were texted their assignments rather than receiving them in person, and employees were also instructed not to ride to jobsites together.
In separate charges filed by the two employees, they alleged that, at the outset of the COVID-19 pandemic, they raised concerns regarding the working conditions and COVID-19 precautions that were put in place by the Council. For instance, they allege that they raised concerns about weekly in-person meetings held by the Council, where as many as 18 people attended, and the buffet lunches attended by several employees after the start of COVID-19. The employees also alleged that they voiced concerns over the distribution of care packages to retired members of the Union without maintaining social distancing. Additionally, they allegedly mentioned in debrief sessions that COVID-19 testing was being conducted at a construction site and obtained a list of electricians who tested positive for COVID-19 at the site. Finally, they allege that they generally discussed concerns about COVID-19 with other employees and the neurological side effects of COVID.
Then, on June 1, 2020, the two employees were laid off and were told the reason for the layoff was due to COVID-19. Both were laid off without any prior warning.
The underlying charges allege that the Council violated Section 8(a)(1) of the National Labor Relations Act (“the Act”) in laying off the two employees because they engaged in concerted activities for mutual aid and protection by raising concerns with the Council about its employees’ safety and working conditions in the COVID-19 pandemic. The first employee filed his charge on June 29, 2020, and the second employee filed his charge a day later. The two charges were consolidated, and a complaint was issued by the Region on November 30, 2020.
In dismissing the complaint, the ALJ utilized the analysis in Wright Line, 251 NLRB 1083 (1980), to determine whether: (1) the employees engaged in protected activity, (2) the Council had knowledge of the activity, and (3) the animus against that activity was sufficient to create an inference that the employees’ protected activity was a motivating factor in their discharges.
The ALJ found the employees established that they engaged in protected concerted activity. Specifically, the first employee’s only protected concerted activity consisted of asking if the Council planned to test its employees for COVID-19 and arguably getting tested himself. The ALJ deemed this protected activity as “fairly benign.” Therefore, the ALJ concluded the Council’s response—that it had no plans to test—did not constitute animus.
Similarly, the ALJ found the second employee engaged in more substantial protected activity, including: raising concerns about in-person meetings and buffet lunches, mentioning testing at the construction site, getting tested in concert with the first employee, discussing concerns about COVID-19, complaining about delivering care packages, obtaining a list of electricians who tested positive at a construction site, and mentioning COVID-19 side effects in debrief sessions.
The ALJ found, however, there was not enough evidence to support an inference that there was a causal relationship between the second employee’s layoff and any protected activity in which he engaged. The ALJ reasoned that the employee was at risk of losing his job in December 2019 due to his job performance, a prior issue with his use of the Council-related Facebook page, and the difficulty of providing him with job assignments due to the location of his tattoos. These issues existed months before he engaged in much of the protected activity related to COVID-19. Moreover, the ALJ found that the Council had laid off 21 employees in June, including the two employees at issue, and that the layoffs as a whole were not motivated by animus towards the employees’ protected activities. The ALJ reasoned that the Council considered these layoffs before the employees engaged in much of the alleged protected activity due to shutdowns that resulted from the COVID-19 pandemic. The ALJ found that, although the Council had a “great deal of animus” towards the second employee due to prior personnel issues, such animus was because of activities that were not protected under the Act.
Accordingly, the ALJ concluded the employees’ initial burden of proving discrimination was not met. Rather, the ALJ found the record consistent with the proposition that the Council “used the economic downturn to get rid of 2 business representatives it was considering laying off or firing beforehand.”
The Board adopted the ALJ’s recommended dismissals of the alleged violations of Section 8(a)(1) stemming from the employees’ job terminations. In doing so, the Board did not rely on the ALJ’s statement that the first employee’s protected activity was “fairly benign.” In addition, it clarified that, although there is some testimony that the Council was considering layoffs of employees in April 2020, the record established that the layoffs of the two employees were not finalized until May 21, 2020, after they began engaging in protected concerted activity. Nevertheless, the Board agreed with the ALJ’s decision that the employees failed to establish animus towards the protected activity, and therefore did not meet the initial Wright Line burden.
The ALJ and Board decisions show the potential difficulty employees may face in proving the third prong of the Wright Line test – i.e., that the animus against the activity sufficiently creates an inference that the employee’s protected activity was a motivating factor in a termination of employment. Even when there is evidence of protected activity, the record as a whole might not establish that the protected activities were a material factor in a decision to terminate or lay off an employee. This decision is significant given the composition of the current Board, demonstrating that a complete lack of a causal connection may still be enough to find a lack of discrimination even where this is evidence of protected concerted activity.