How to Fire Employees In the Midst of a Union Organizing Campaign?

Make sure that there is a legitimate, documented, reasonable and non-union-related reason for doing so, as demonstrated by the employer in a recent case before the U.S. Court of Appeals for the Eighth Circuit.

Under the Wright Line analysis, when an employer asserts a facially legitimate reason for termination, but the motive is disputed, the National Labor Relations Board’s General Counsel must establish that the protected activity is a “substantial or motivative factor” in the decision. If that showing is made, then the burden shifts to the employer to show that “it would have taken the same action for a legitimate, nondiscriminatory reason regardless of the employee’s protected activity.”

In Strategic Technology Institute, Inc. v. NLRB, the employer became aware that employees were discussing unionization. Around the same time, the employer received five corrective action reports from its client for safety and performance issues, which required the employer to set forth the corrective actions it would take. Three employees were fired for their responsibility for one serious incident, and union activity increased. 41 other employees were ranked on their performance, attendance, and interaction with others – union activity was not part of the ranking. The lowest-ranked 14 employees were also fired. The employee subsequently voted to unionize, and the union filed an unfair labor practice charge with the Board. An administrative law judge found, and the Board agreed, that all of the terminations were based on the employees’ union activity, in violation of employees’ rights under the National Labor Relations Act to engage in concerted activities such as organizing and collective bargaining.

The Eighth Circuit disagreed. In applying Wright Line, the Eighth Circuit found that the GC could not show that union activity was a substantial or motivating factor in the termination of the first three employees – the employer established that the performance errors were recurring, retraining was insufficient, and the incident was severe. Consequently, the Eighth Circuit found that heightened remedial action was reasonable. As for the remaining 14 employees, there were no union-based threats or outbursts, questioning of employees on union involvement, or other comments on unionization prior to the filings – thus there was no direct evidence that the firings were union-related. The timing of the rankings alone was not sufficient to infer an improper motive, and the rankings themselves were based on legitimate factors. In the end, the Eighth Circuit found the General Counsel failed to meet the burden of providing substantial evidence that the employer had anti-union animus and that the terminations were motivated by the animus.

This case provides a roadmap for how to handle employee terminations in the context of a union organizing campaign. The employer did not make any negative comments or threats about unionization and did not question employees about their union activity. The disciplinary decisions were based on documented, legitimate and significant safety concerns for which prior actions (e.g. training and retraining) had proven to be insufficient. Given the severity of the safety violations, termination was a reasonable level of discipline. The ranking of the employees was based on legitimate, job-related criteria, and did not include union activity.