A federal appeals court has reversed unfair labor practice findings against a Sam’s Club in Landover, saying there was not enough evidence that managers improperly disciplined a union organizer and threatened the store might close.
But in a strongly worded dissent, 4th U.S. Circuit Court of Appeals Judge M. Blane Michael said the court’s ruling Tuesday represents an “evisceration” of the National Labor Relations Board’s authority.
“It is a path over which, I fear, we may trample the rightful powers of the board,” said Michael. If left to stand, he said, the ruling by the three-judge panel of the court would represent a “sea change” in the law regarding unfair labor practice charges.
An administrative judge for the NLRB ruled in the spring of 1995 that the Sam’s Club store at Landover Crossing had violated the National Labor Relations Act by the way in which it encouraged employees to vote against unionization in 1994.
Workers in the store ultimately voted 88-52 against representation by the United Food and Commercial Workers International Union.
The union filed charges of unfair labor practices, citing at least three incidents that it said swayed Sam’s Club employees prior to the July 8, 1994, vote:
* It claimed that a supervisor told a worker that the store would close, after the worker expressed her hope that the union would win. The worker later testified, however, that she could not remember if the supervisor made the threat or if she herself had raised the possibility of the store closing and her supervisor had merely agreed.
* In March, Lawrence Perez, a member of the union’s organizing committee, asked if he could take a break and was told to wait until another employee came back from break. Perez took his break anyway, earning a written warning. When he refused to sign the warning, Perez was given a one-day paid suspension.
* Two union representatives who spoke routinely to Sam’s Club workers about the benefits of unionization said in court documents that the store’s operations manager, Stan Harris, would frequently comment that “Wal-Mart was a powerful company that would not tolerate a union.”
An NLRB administrative law judge sided with the union and ordered Sam’s Club to stop illegally interfering in the union campaign, remove references to Perez’s discipline from its personnel files and post a notice in the Landover store.
Sam’s Club appealed to the NLRB, which upheld the judge’s opinion and adopted her proposed order.
But the appeals court in Richmond said Tuesday that the board did not present enough evidence to show that Sam’s Club had interfered in the election.
The majority said the administrative law judge obviously did not understand or consider Sam’s Club’s reasons for disciplining Perez.
The high court also said the NLRB improperly added the allegations about Harris, the operations manager, after the complaint had already been filed.
The court said it would defer to the NLRB if its findings were “rational and consistent” with the National Labor Relations Act and “supported by substantial evidence based upon the record as a whole.” But the evidence did not meet that standard, the court said.
Michael dissented, saying it is the NLRB’s job to determine whether evidence is substantial and that the board should be allowed to amend an existing complaint.
He noted that Perez’s discipline, for example, was supposed to be less severe but that a supervisor who had earlier ordered him to “tone down” his union activity stepped in and imposed the harsher discipline.
Michael said that only the “most unsavvy transgressors leave a trail of direct evidence of the transgression” against union organizing.
“The sophisticated lawbreaker not only leaves few tracks but actively conceals them with ostensibly innocent explanations,” said Michael of the company’s actions. “It is the board’s job, and not ours, to ferret out these hidden trails.”
But a spokeswoman for Wal-Mart maintained that the company did nothing wrong.
“We have asserted all along that it was a fair election,” said Betsy Reithemeyer, the spokeswoman. She said that no Wal-Mart facility has ever voted for “third-party representation because we take care of our people.”
An NLRB official said the agency is considering its options.
“Undoubtedly, the agency is analyzing the decision to determine whether or not to appeal,” said Tana Adde, spokeswoman for the NLRB.
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