Summary
This D.C. Circuit opinion reviews a National Labor Relations Board decision finding that Acumen Capital Partners unlawfully discharged an engineer for engaging in protected union activity. Applying the Wright Line framework, the court examines whether the employer had knowledge of the union activity and acted with anti-union animus, or would have taken the same action regardless. Finding substantial evidence that the employer's stated reason for termination was pretextual and closely followed the union election petition, the court denies the petition for review and grants enforcement of the Board's order.
Topics
Practice areas
Questions Presented
- Whether substantial evidence supported the Board's finding that Acumen knew of Zapata's protected union activity.
- Whether substantial evidence supported the Board's finding that anti-union animus was a motivating factor in Acumen's decision to discharge Zapata.
- Whether Acumen established under Wright Line that it would have discharged Zapata absent the unlawful anti-union motive.
- Whether the Board's decision and order should be enforced.
Holdings
- Substantial evidence supported the Board's finding that Acumen had knowledge of Zapata's protected union activity. Coppola's knowledge could be imputed to Acumen because the Board found him to be a statutory supervisor, and additional evidence supported the inference that management knew of Zapata's union-related activity and dissatisfaction with employment conditions.
- Substantial evidence supported the Board's finding that anti-union animus was a motivating factor in Acumen's discharge of Zapata.
- Acumen failed to show that it would have discharged Zapata absent the unlawful anti-union motive.
Key quotations
“This court’s review is limited to whether the Board’s decision is “supported by substantial evidence,” 29 U.S.C. § 160(e), that is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).” (9)
“The timing of Zapata’s discharge, the pretextual nature of Acumen’s proffered non-discriminatory explanation, and the unexplained disproportionality of the discharge even after the vaccine was promptly obtained, taken together, provide substantial evidence for the Board’s finding of animus.” (16)
Factual background
Acumen employed building engineers at a Brooklyn office building. The engineers, including Gregory Zapata, had prior union experience and began discussing unionization in January 2022; a union representative met with them, they signed authorization cards, and the Union filed a representation petition on February 3, 2022. Acumen had not consistently enforced New York City's COVID-19 vaccination order, and chief engineer Salvatore Coppola repeatedly told the engineers that Acumen was not yet enforcing it. Acumen discharged Zapata on February 15, shortly after the Union petition was filed and despite his stated intent to obtain a vaccine the next day, then declined to promptly reinstate him after he was vaccinated.
Procedural history
An administrative law judge found that Acumen unlawfully discharged Zapata and that chief engineer Salvatore Coppola was a statutory supervisor ineligible to vote in the related representation election. The Board affirmed the relevant portions of the ALJ's decision, adopted a standardized order, and denied Acumen's request for oral argument. Acumen petitioned for review, and the Board cross-applied for enforcement.
Remand instructions
No remand was ordered. The court denied Acumen's petition for review and granted the Board's cross-application for enforcement of its decision and order.