08/05/2025: A Successful Wright Line Affirmative Defense
Supervisory status and information requests.
Twin City Tanning Company, L.L.P., JD-67-25, 18-CA-349420 (ALJ Decision)
The case involves Di'Jon Doctor-Harris, who filed an unfair labor practice charge against Twin City Tanning Company, alleging the company reassigned him to a shift incompatible with his childcare needs because he filed a grievance seeking additional pay for extra work assigned to him.
Doctor-Harris had worked as an operator on the third shift at Twin City Tanning since 2021. In April/May 2024, management asked him to take on additional work responsibilities by completing collagen mixer tasks in addition to his regular Devro acidification process duties. He performed both jobs but requested lead pay for the additional work, as he had received lead pay for similar situations in the past.
When Twin City Tanning denied his request, Doctor-Harris filed a grievance with his union. The parties met on May 10, 2024, to discuss the grievance. During this meeting, Doctor-Harris claimed he was too busy to handle both responsibilities. After the meeting, plant manager Marvin Miller decided to review security camera footage to determine if Doctor-Harris was indeed too busy.
Upon reviewing the footage, management concluded that Doctor-Harris had falsified documentation on a Devro acidification process sheet by indicating he had performed required testing (acid cut and pH reading) that he allegedly did not perform. Three days after the grievance meeting, the company informed Doctor-Harris he was being disqualified from his operator position and could only work in non-operator positions on the first or second shift, as there were no non-operator positions on the third shift.
Doctor-Harris chose a second-shift position but began experiencing attendance issues due to childcare responsibilities, which ultimately led to his termination in October 2024. He testified that approximately two weeks after his demotion, his former supervisor, Dallas Bryant, told him that Wilber Moran (plant superintendent) was upset that Doctor-Harris had gone to the union for a second time.
In analyzing the case, Administrative Law Judge Michael Silverstein applied the Wright Line framework. The General Counsel established a prima facie case by showing: (1) Doctor-Harris engaged in protected activity by filing a grievance; (2) the employer knew about this activity; and (3) the employer harbored animus toward this activity, as evidenced by Bryant's statement to Doctor-Harris.
However, Twin City Tanning successfully demonstrated it would have taken the same action regardless of Doctor-Harris's protected activity. The ALJ found that:
The company had a reasonable belief that Doctor-Harris failed to perform the required acid cut and falsified documentation.
Doctor-Harris never affirmatively stated he performed the acid cut or denied the allegations.
The video evidence supported the company's position that he failed to follow procedures.
The company's decision was consistent with past practice, as evidenced by two previous instances where operators were disqualified for similar infractions.
While acknowledging that the timing of the demotion was suspicious and the company failed to conduct a thorough investigation before taking action, the ALJ concluded that Twin City Tanning met its burden under Wright Line. The complaint was dismissed in its entirety.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing dual-motive cases where the employer's action may have been motivated by both lawful and unlawful reasons.
Amentum Services, Inc., 374 NLRB No. 16 (2024): Clarified that an employer's motivation is a question of fact that may be inferred from direct and circumstantial evidence.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Outlined factors that may indicate discriminatory motive, including timing, false reasons, and failure to investigate.
New Orleans Cold Storage & Warehouse Co., LTD., 326 NLRB 1471 (1998): Established that failure to conduct a meaningful investigation can be evidence of discriminatory intent.
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): Clarified that under Wright Line, the employer's defense burden is one of persuasion, not merely production.
United States Postal Service, JD-62-25, 07-CA-310921 (ALJ Decision)
Administrative Law Judge Melissa Olivero ruled that the United States Postal Service violated labor law by refusing to provide information requested by Western Michigan Area Local 281, APWU. The case involved three information requests from January 2023 concerning Supervisor Oscar Perez's alleged abusive behavior.
The Union sought to interview six supervisors who experienced or witnessed Perez's conduct and requested emails, statements, and investigative materials about his behavior. USPS refused, claiming the requests might interfere with management's own investigation.
The ALJ found the information was relevant to the Union's grievances despite involving non-bargaining unit personnel. She rejected USPS's confidentiality claims since they failed to offer any accommodation after the Union agreed to maintain confidentiality.
The judge determined USPS violated Section 8(a)(5) and (1) of the NLRA regarding the first two requests but dismissed the allegation of unlawful delay for the third request. She also rejected USPS's argument that the matter should be deferred to arbitration.
As remedy, USPS must provide the requested information and post notices at its Grand Rapids facilities.
Significant Cases Cited
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Established employers must provide information needed by unions for proper performance of duties.
Piedmont Gardens, 362 NLRB 1135 (2015): Held witness statements are not automatically exempt from disclosure.
FCA US LLC, 371 NLRB No. 32 (2021): Outlined balancing test for confidentiality interests against union's need for information.
Holiday Inn on the Bay, 317 NLRB 479 (1995): Information about supervisory personnel can be relevant to processing grievances.
NLRB v. U.S. Postal Service, 888 F.2d 1568 (11th Cir. 1989): Information about supervisors' discipline can be relevant when same standards apply to unit employees.
UPMC Magee-Womens Hospital, 06-RC-366344 (Regional Election Decision)
In this case, SEIU Healthcare Pennsylvania filed a petition seeking to represent registered nurses (RNs) at UPMC Magee-Womens Hospital in Pittsburgh. The key dispute was whether RNs who serve as rotating Charge Nurses should be excluded from the bargaining unit as statutory supervisors under the National Labor Relations Act.
The hospital argued that Charge Nurses exercise supervisory authority by assigning patients to nurses based on acuity scores and nurse skills, and by responsibly directing other staff. They claimed over 20% of the proposed unit should be excluded because these RNs spend more than 10% of their time performing supervisory functions as Charge Nurses.
The Regional Director determined that the hospital failed to meet its burden to establish that Charge Nurses are statutory supervisors. The decision focused on several key findings:
The hospital did not demonstrate that RNs performed Charge Nurse duties with any regularity or substantiality, as there was no consistent rotation or predictable schedule for when RNs worked as Charge Nurses.
The hospital's data purporting to show percentage of time worked as Charge Nurses was unreliable, as it included hours for non-supervisory roles and work at other facilities.
Charge Nurses did not exercise independent judgment when assigning patients to nurses, as they primarily used acuity tools and workload equalization rather than discretionary decision-making.
Charge Nurses were not held accountable for the performance of other employees, which is necessary to establish "responsible direction" under the Act.
Charge Nurses lacked authority to make staffing decisions independently, requiring approval from management for up-staffing or down-staffing.
The decision granted an exception for NICU Charge Nurses, who will vote subject to challenge since the record was unclear about their potential supervisory authority, as they go through a different selection process and may exercise more independent judgment in assignments.
The Regional Director directed an election for a unit including all full-time and regular part-time RNs at the hospital, excluding various managerial and administrative positions, with NICU Charge Nurses, Lactation Consultants, and related positions voting subject to challenge.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established framework for determining supervisory status, including definitions of "assign," "responsibly direct," and "independent judgment."
Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Clarified the three requirements to establish supervisory status under Section 2(11) of the Act.
Golden Crest Healthcare Center, 348 NLRB 727 (2006): Established that a "more-than-merely-paper showing" is required to prove accountability for responsible direction.
Entergy Mississippi, Inc., 357 NLRB 2150 (2011): Held that responsible direction is not established without evidence that putative supervisors are held accountable for others' work deficiencies.
Shaw, Inc., 350 NLRB 354 (2007): Clarified that assignments based on known skills or involving recurrent and predictable tasks do not involve independent judgment.