S. Freedman & Sons, Inc. v. National Labor Relations Board
713 F. App'x 152
| 4th Cir. | 2017Background
- Richard Saxton, a 26-year employee and longtime union steward, filed multiple grievances under a CBA with S. Freedman & Sons; employer employed ~135 people and 28 drivers.
- July 2014: Employer investigated whether Saxton drove with an expired license; Saxton said he lost his license and obtained a duplicate on July 1. Employer terminated him on July 3, 2014, five days before a grievance hearing.
- Documentary DMV records showed a duplicate (“D”) license and corroborated Saxton’s account; employer later converted the firing to an unpaid suspension (July 23) but refused back pay, asserting dishonesty.
- September 29, 2014: After refusing an overtime/extra trip based on the CBA’s seniority-overtime provision, Thompson told Saxton to punch out and not return; employer later issued an October 2 termination letter. Union intervened and instructed Saxton to return.
- ALJ and the NLRB found the July termination/suspension and the September termination violated Sections 8(a)(1) and 8(a)(4) of the NLRA; employer sought review. Court upheld the Board on substantial-evidence review and enforced its order.
Issues
| Issue | Saxton's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether July 3, 2014 firing and July 23 suspension were unlawfully motivated retaliation for protected activity | Employer knew of his grievances; proffered reason (driving with expired license) was false, so motive inference supports retaliation | Employer contends Saxton lied about his license status and discipline was justified | Held for Board: credibility findings supported; employer’s reason found false; discipline violated NLRA (8(a)(4) and 8(a)(1)) |
| Whether the effective date of termination was Sept 29 vs Oct 2 | Termination occurred Sept 29 when manager told him to punch out and not return | Employer relies on Oct 2 letter as effective termination date | Held for Board: substantial evidence supports Sept 29 as the termination date |
| Whether refusal to take overtime on Sept 29 was protected concerted activity under the CBA | Refusal was concerted and expressly referenced CBA seniority overtime rule; junior drivers were available | Employer argues insubordination, profanity, and CBA limits on steward conduct removed protection | Held for Board: refusal was reasonably directed to enforce CBA rights and was protected; termination violated 8(a)(1) |
| Whether profanity and alleged abusive conduct forfeited NLRA protection | Profanity/unprofessionalism insufficiently egregious to forfeit protection here | Employer asserts conduct was abusive and unprotected, justifying discharge | Held for Board: conduct not so egregious/abusive to forfeit protection; protection retained |
Key Cases Cited
- Gestamp S.C., LLC v. NLRB, 769 F.3d 254 (4th Cir. 2014) (standard of review for Board factual findings)
- Pac Tell Grp., Inc. v. NLRB, 817 F.3d 85 (4th Cir. 2015) (definition of substantial evidence)
- NLRB v. Transpersonnel, Inc., 349 F.3d 175 (4th Cir. 2003) (deference to ALJ credibility findings)
- RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442 (4th Cir. 2002) (Wright Line framework for retaliation burden shifting)
- NLRB v. City Disposal Sys. Inc., 465 U.S. 822 (1984) (when refusal to work under CBA is protected concerted activity)
- Media Gen. Operations, Inc. v. NLRB, 560 F.3d 181 (4th Cir. 2009) (egregiousness standard for losing Act protection)
- Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267 (4th Cir. 2003) (deference to Board when record contains conflicting testimony)
- WXGI, Inc. v. NLRB, 243 F.3d 833 (4th Cir. 2001) (deference to Board interpretations of the Act)