Lancaster County v. Pennsylvania Labor Relations Board

DISSENTING OPINION BY

Judge McGINLEY.

I respectfully dissent to the Majority’s conclusion that the PLRB erred when it determined that the Union met its burden of proving that the County knew of the union activities of Tommy Epps (Epps) and Adam Medina (Medina) and dismissed them because of anti-union animus.

*1119The Majority concludes that the PLRB committed an error of law because the PLRB imputed the knowledge of Fred Arnold (Arnold) and William Delgado (the supervisors of Medina and Epps) to Drew Fredericks (Fredericks), the director of the County’s Youth Intervention Center and the individual who made the decision to terminate Medina and Epps. The Majority asserts that the party who alleges the unfair labor practice has the burden to establish that the employer’s decision maker had knowledge of the employee’s protected activity. Here, the Majority asserts that the record is devoid of any evidence of a conversation between Arnold and Fred-ericks or William Delgado and Fredericks that conveyed the information that Medina and Epps were involved in union activities.

I believe that Epps and Medina met their burden and that the knowledge of their union activity may be imputed to the County. The PLRB found as fact that “Medina spoke with his supervisor, Fred Arnold, about his support for the Union in May 2010, sharing with him what he thought about the Union and what he was doing with respect to the Union’s efforts.” Proposed Decision and Order, December 19, 2011, (Decision), Finding of Fact No. 39 at 5. The PLRB also found as fact that Epps “talked with his supervisor, William Delgado, about the Union, stating that the Union was coming. He told William Delgado that he had talked with Union representatives.” Decision, Finding of Fact No. 40 at 5. Arnold and Christina Delgado, the wife of William Delgado, and also a supervisor, were actively involved in the investigation of Epps and Medina. Arnold assisted Christina Delgado in the review of videotapes and in the decision to refer the matter to Fredericks. William Delgado assisted Fredericks in contacting Evette Sepulveda (Sepulveda) to prepare an unusual incident report. William Delgado also contacted Leroy Kirkland (Kirkland) to prepare an unusual incident report in which Kirkland stated that he did not give Epps permission to remove items from his mailbox. Arnold and William Delgado were aware of Epps’s and Medina’s protected activities and were actively involved in the investigation of them.

The Majority correctly asserts that no binding Pennsylvania decision has ever addressed the issue of whether a supervisor’s knowledge that an employee is engaged in pro-union activity may be automatically imputed to the employer. I cannot agree with the Majority’s conclusion that a union must prove that one supervisor with knowledge of an employee’s union activity told a higher level supervisor of the activity in order to establish that the employer was aware of the employee’s union activities. The PLRB did not err when it imputed the knowledge of Arnold and William Delgado concerning the union activities of Epps and Medina to the County. See Pennsylvania Labor Relations Board v. Cadman, 370 Pa. 1, 87 A.2d 643 (1952).

I also disagree with the Majority’s conclusion that the record does not support a finding that Fredericks’s decision to terminate the employment of Epps and Medina was motivated by anti-union animus. First, the timing of the terminations supports the finding. Epps and Medina informed their supervisors of their support for the Union in the spring of 2010. The Union filed its petition for certification on June 10, 2010. Epps and Medina took the items on June 16 and 17, 2010. Sepulveda complained to her supervisor about items missing from her mailbox on June 21, 2010. Epps and Medina were discharged on June 23, 2010. While timing may be a coincidence and not indicative of anti-union animus, see Shive v. Bellefonte Area Board of Directors, 12 Pa.Cmwlth. 543, 317 A.2d 311 (1974), the timing of a discharge may provide a strong *1120indicator that the discharge was motivated by anti-union animus. Lehighton Area School District v. Pennsylvania Labor Relations Board, 682 A.2d 439 (Pa.Cmwlth. 1996).

The PLRB found other indicators to support the determination that the discharges of Epps and Medina were pretex-tual. Anti-union animus is rarely overt. As a result, an unlawful discriminatory reason or motive for discharge is often based on inferences deduced from the totality of the circumstances. Pennsylvania Labor Relations Board v. Stairways, Inc., 56 Pa.Cmwlth. 462, 425 A.2d 1172 (1981).

The PLRB concluded that irregularities existed in the investigations. For instance, despite Sepulveda’s claim that items went missing from her mailbox for weeks or months, the County only looked at two days of videotape. The County did not take into account Sepulveda’s incident report where she stated that she did not care if Medina took snack items from her mailbox. The PLRB also noted that the County did not investigate other reports of theft including that of a cellular telephone. If theft of snacks warranted the dismissal of two employees, it would follow that the theft of something more valuable, like the telephone, would merit an investigation. Further, as part of the investigation, the County ignored Medina’s claim which was supported by an email from a coworker that he had permission from Sepulveda. Similarly, the County never made a further inquiry of Epps when he stated that he believed Kirkland permitted him to take snacks from Kirkland’s mailbox. Also, the County moved to terminate Epps and Medina without following the steps of the progressive disciplinary policy.

Again, to illustrate the disparate treatment, when the County became aware that another employee was allegedly taking food from the employees’ refrigerator, Fredericks admitted that there was no investigation because no one wanted to write a report. If theft of small snack items warranted dismissal, why did the County ignore the possible theft in that case especially when the alleged perpetrator’s identity was known? I believe that that PLRB did not err when it determined that the discharges of Medina and Epps were motivated by anti-union animus on the part of the County.

Accordingly, I would affirm the order of the PLRB.