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An appellate court affirmed an enforcement order of the National Labor Relations Board against an oil refinery accused of unlawfully suspending an employee for engaging in protected activity.
In St. Paul Park Refining Co. LLC v. National Labor Relations Board, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis unanimously held on Monday that the board did not err in finding that St. Paul Park Refining retaliated against a worker and denied him his bonus to discourage union activities.
The oil refinery, based in St. Paul Park, Minnesota, processes crude oil, and many of its employees are union members. Due to the hazards at the refinery, the collective bargaining agreement and the employee handbook stipulate that employees must notify supervisors if they believe work conditions are hazardous and to assist in remedying unsafe conditions. The company also requires employees to document procedural changes via a “step change form” and gives employees the authority to stop a job due to safety concerns.
On Nov. 4, 2016, an employee was tasked with restarting a machine by injecting hydrochloric acid from pressurized cylinders into the machine to clear out rust and dust, a technique that had only been implemented a few weeks prior. He asked Richard Toper, the union steward, about the safety of the procedure, and the two requested a step change form for the new procedure, which was prepared by an engineer. The form included an instruction stating that other hydrochloric acid cylinders should not be in the same area as the one that will be heated.
Supervisors reassigned the task to Mr. Toper and provided him with the form. He noted that other cylinders were near the cylinder to be heated, but was instructed to mitigate the hazard by placing insulation blankets over the cylinders that were not in use. Mr. Toper said he feared that suggestion was unsafe and risked explosion and filled out a safety stop form. He also said he felt he was being pressured to perform the task despite his safety concerns. He and his supervisor began raising their voices and Mr. Toper was sent home.
Human resources opened an investigation into the incident and the supervisor said Mr. Toper had refused to do assigned work, behaved insubordinately, refused to discuss mitigation and raised his voice and pointed his finger at the supervisor. Mr. Toper was issued a 10-day unpaid suspension and a final written warning, citing inappropriate behavior and insubordination. A few months later, he was denied his quarterly bonus.
He asserted two unfair labor practice charges against St. Paul Park, alleging they had retaliated against him by disciplining him and denying his bonus to discourage his union activities. An administrative law judge held in Mr. Toper’s favor and ordered the refinery to cease threatening employees for union activity, restore any loss of earnings or benefits by Mr. Toper and remove any evidence of his discipline from his file. The Board adopted the administrative judge’s decision in full. St. Paul Park appealed.
The 8th U.S. Circuit Court of Appeals affirmed the Board’s decision. The court held that Mr. Toper was engaged in protected concerted activity, noting that the National Labor Relations Act protects the rights of employees to engage in work stoppages when they believe the working conditions are “unsafe” or “unhealthy.” The appellate court said the Board’s determination that Mr. Toper’s later behavior was a “logical outgrowth” of his earlier safety concerns, and that his insistence on a safety stop was a “motivating factor” in his discipline.
The appellate court noted that St. Paul Park sent him home after his repeated refusal to perform the task and noted that the refinery’s internal investigation relied “almost entirely on supervisors’ accounts of the interaction” between the supervisor and Mr. Toper. Since his discipline was described as a refusal to work, then refusal to discuss mitigation, and later belligerent behavior and finger-pointing — which was not reported by the supervisor in her first account of the incident — the court held that these facts together provided substantial evidence of a discriminatory motive.
The appellate court, therefore, affirmed the Board’s order.
Attorneys for the refinery did not immediately respond to requests for comment.
An administrative law judge of the Occupational Safety and Health Review Commission vacated citations issued against a construction employer in a fatal worksite incident.