Boydstun Metal Works fires outspoken union supporter

By DON McINTOSH, Associate Editor

As a vocally pro-union worker at an anti-union company, Roger Olson stuck out like a loose nail. On Jan. 15, the hammer came down — termination.

Olson, 30, who worked as a welder at Boydstun Metal Works for four-and-a-half years, alleged he was fired because he supported an unsuccessful year-long union drive by Sheet Metal Workers Local 16.

His supervisor, Jason Morgan, told the Labor Press there’s no truth to Olson’s claim. Olson’s welding was too slow, Morgan said, and he’d already been transferred from two other jobs at Boydstun’s North Portland factory, where 200 mostly-immigrant workers put together automobile transport trailers.

It’s a violation of the National Labor Relations Act for an employer to fire a worker for supporting a union drive. But when employers point to other reasons for a firing, how can a worker prove the case?

Labor attorney Ed Hill says workers in such cases need to be able to show three things to the National Labor Relations Board (NLRB), the federal agency that oversees workers’ union rights:

• That they were treated differently than anti-union workers;

• That the treatment resulted in discouraging union support; and

• That the employer had an anti-union motive.

“It’s really hard if you’ve got a careful employer,” Hill said. A careful employer may take the time to document employee mistakes, to build a defense if a firing is challenged. “A lot can be justified in the name of business necessity, and that’s unfortunate,” Hill said.

Motive may seem like the hardest thing to prove, Hill said, except that the courts accept “circumstantial evidence” in such cases, meaning that motive can be inferred from actions.

For example:

• The timing seems suspicious, like when employees wear a union button one day and are fired the next.

• The discipline seems very out of proportion to the offense.

• A rule that has never been enforced before is suddenly enforced strictly.

• The employer fires workers without any investigation of the offense they were fired for.

• The employer is committing other labor law violations around the same time.

Oregon, like many states, is an “at-will” employment state, meaning that unless workers have a union contract that says otherwise, they may be fired at any time for any reason or no reason at all. That means employers can legally fire workers for such offenses as “bad attitude.”

But if “bad attitude” is a euphemism for union activism, Hill said, employers will have a harder time proving the case to an NLRB administrative law judge. Employers have a tighter case when an employee fails to meet performance standards that are objectively measured. However, Hill, said, “objective standards are great, but they’d better be evenly applied. They may think they can paper you out the door, but they’d better be papering other people out the door for the same reason.”

Oftentimes, management may be openly anti-union, but still argue that the firing of a union-supporter is motivated by legitimate non-discriminatory reasons. In such cases, the burden of proof often falls to the employer to show that the same actions would have resulted in firing an anti-union worker as well.

Hill cautioned that his comments don’t constitute formal legal advice, but said it’s important that workers have a general idea about how to protect themselves.

One bit of advice: “If you’re going to support the union, you should really go whole hog,” Hill said. Once a union campaign is out in the open, it’s important that union supporters be visible so that management can’t claim it didn’t know a worker was a union supporter.

Firing, Hill said, “is a risk you assume in the name of organized labor. If they catch you, they may find some reason to discipline you, and you’d better be prepared to defend yourself.” It helps if workers keep a record when they or others are disciplined.

“If you’re going to organize, learn the rules, know the rules, and follow the rules, because management will make every effort to defend themselves against a union campaign, including getting rid of you,” Hill said.

Boydstun fired union supporter Ivan Tkatch in November 2002; the union filed an NLRB charge on his behalf, but the case went nowhere.

Olson said he too intends to file an unfair labor practice charge with the NLRB, and he hopes his three-inch-high stack of work rules and employee work history documents will help his case. It’s true, he said, that the company documented his sometime failures to meet target times for welding jobs. But he says he doubts other workers were subjected to the same level of management vigilance.

Olson also said his supervisor is correct to point out that he’d been transferred to different assignments already. But one of those transfers, Olson said, had been an attempt to isolate him from other workers to prevent his talking about the union. The union filed charges against that transfer with the NLRB, and the company agreed to return Olson to his previous assignment.

One issue is certain: The company knew Olson was a union supporter. He wore a union T-shirt and baseball cap every day, covered his welding hood with union stickers, talked up the union at every opportunity.

“Prior to organizing I was a great employee,” Olson said. “But once I came out for the union, this was inevitable.”

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