Rejecting a National Labor Relations Board decision that two employees were unlawfully discharged for engaging in union activities because there was no evidence that the person who made the decision to discharge the workers knew that they had engaged in any union activity, a federal appeals court in Richmond has refused to enforce a Board order directing that the employees be reinstated to their jobs with back pay.

In Gestamp S.C., LLC v NLRB, Case No. 11-2362 (4th Cir., October 8, 2014), two union supporters were discharged after it was determined that they had falsified an application and time card.  The decision to discharge the employees was made by the Director of Human Resources.  There was no evidence she had any knowledge that the employees had been active union supporters.  It was undisputed, however, that two front-line supervisors did know that the discharged employees were actively supporting the union, and because of this, the Board’s administrative law judge found the discharges were unlawfully motivated.  The Board upheld that finding.

On appeal, the Board argued that it was not required to prove knowledge on the part of the decision-maker to show the terminations violated the National Labor Relations Act.  Instead, it said, the knowledge of the two supervisors that the employees had engaged in union activity should be imputed to the employer and another of its agents, the Human Resources Director.  The Court rejected this argument. It held that without evidence that the person who made the discharge decision had knowledge of the employees’ union activity, the finding that their discharge was unlawfully motivated could not be upheld.

Vicarious liability has vexed more than one employer.  The court’s decision, however, offers some assurance to employers, at least those in the states embraced by the Fourth Circuit (Md., Va., W.Va., N.C., and S.C.), that adverse personnel actions taken by a human resources or other management official for legitimate, non-discriminatory reasons will not be questioned later because of a first-line supervisor’s knowledge of an employee’s protected activity, of which the decision-maker was entirely unaware.