Frog, Switch & Mfg. v. Human Relations

• Decision Date: 27 October 2005
• Citation: 885 A.2d 655
• Parties: The FROG, SWITCH & MANUFACTURING COMPANY, Petitioner v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

885 A.2d 655

The FROG, SWITCH & MANUFACTURING COMPANY, Petitioner v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued September 13, 2005.

Decided October 27, 2005.

Andrew L. Levy, Harrisburg, for petitioner.

Ronald W. Chadwell, Asst. Chief Counsel, Harrisburg, for respondent. BEFORE: PELLEGRINI, Judge, and LEADBETTER, Judge, and JIULIANTE, Senior Judge.

OPINION BY Judge PELLEGRINI.

The Frog, Switch & Manufacturing Company (Employer) appeals an order of the Pennsylvania Human Relations Commission (Commission) finding that Employer retaliated against Wilmer Baker (Complainant) for participating in Commission cases and for opposing unlawful practices under the Pennsylvania Human Relations Act (Act)¹ and awarding back pay, lost overtime pay and interest thereon to Complainant for the time he was terminated from employment until he was reinstated.

Employer hired Complainant as a rough grinder in 1973 and he later became a welder. After being appointed Union Safety Officer in 1991, in May 1993, Complainant was elected president of the local chapter of the United Steelworkers of America (Union) and represented Employer's production employees. He served as Union president until May 1997. During that time, Complainant was safety officer and filed claims against the company with the National Labor Relations Board (NLRB), the Occupational Health and Safety Administration (OSHA), the United States Environmental Protection Agency, the Pennsylvania Department of Environmental Protection, as well as assisting other employees with filing employment-related claims with the Commission.

On March 6, 1998, Complainant was working as a first-shift welder which ended at 2:00 p.m. Employees, however, were permitted to quit working at 1:50 p.m. to clean up their work station and to take a shower. At about 1:25 p.m., Complainant was asked by another co-worker whether he would weld something for her. He did not. Instead, at around 1:30 p.m., Complainant was standing outside his welding booth when he was confronted by Employer's Vice President of Operations Jerry Kucharczyk (Vice President)² and Foundry Superintendent Ken Alexander (Superintendent). The Vice President asked Complainant if he was finished working for the day, and Complainant responded that he was because the piece in his welding booth was finished and he could not get access to the crane to move it. The Vice President told Complainant that he had at least 20 minutes left in his workday, and that he was required to go back to work until 1:50 p.m. Complainant returned to his booth and said "okay;" meanwhile, the Vice President and Superintendent continued with their inspection. Complainant did not return to work but instead left his station.

Sometime around 1:35, the Vice President and the Superintendent returned to Complainant's booth but he was not there. At around 1:40 p.m. (in any event, before 1:50 p.m.), Complainant was already in the shower room taking a shower. The Vice President and the Superintendent approached Complainant in the shower room and told him they wanted to see him in the office the following Monday. They told Complainant that he should bring a union steward with him. They gave the same instructions to another employee who was also taking a shower before 1:50 p.m. that same day.

The Vice President and Superintendent thereafter spoke to Employer's Director of Plant Facilities and Labor Relations (Director) to discuss Complainant's conduct, indicating that Complainant had disobeyed a direct order and quit work early. By doing so, Complainant violated two work rules: prohibiting insubordination and prohibiting quitting work early. Under Employer's policy, insubordination was an offense that could call for immediate dismissal.

That Monday (March 9, 1998), after several meetings attended by Complainant which always included the union steward (at times there were five other members of the Union), the Vice President, the Superintendent and the Director, Employer issued a verbal reprimand to Complainant for leaving work early in addition to a five-day suspension with the intent to discharge for insubordination for intentionally refusing an order of the Vice President to get back to work until 1:50 p.m. Complainant was told, however, that he would not be discharged if he admitted to having been insubordinate and complied with certain conditions. Complainant refused the offer. On March 12, 1998, Employer officially discharged Complainant.

Complainant and the Union filed a grievance pursuant to the Collective Bargaining Agreement (CBA) of the parties alleging that Complainant was wrongfully discharged in retaliation for Complainant's long history of opposing discriminatory practices committed by Employer and in retaliation for assisting employees with and participating in proceedings before various state and employment agencies, including the Commission. Complainant and the Union sought back pay and reinstatement of Complainant's position.

After a hearing, the Arbitrator found that just cause existed for Employer to discipline Complainant because he was insubordinate. The Arbitrator found that based on the credible testimony of the Vice President and Superintendent, Complainant stopped work 20 minutes early despite having been told by the Vice President to return to work; that Complainant failed to show he actually returned to work after his encounter with the Vice President; and that Complainant failed to show there was a pretext for charging him with insubordination or that the charge was retaliation for his activities in the Union and his prior activities of filing charges with agencies such as the NLRB, OSHA and the Commission, especially because Employer told Complainant he would not be fired if he simply acknowledged that his conduct was insubordinate.

Although the Arbitrator found that just cause existed to discipline Complainant, he concluded that terminating Complainant was excessive punishment because (1) there was never a termination for insubordinate conduct involving other employees, including other instances involving Complainant; (2) Complainant's act of quitting work early was not "sneaky" as claimed by Employer; (3) Employer lackadaisically enforced early quit rules; and (4) Complainant was fired while another employee in the shower at the same time as Complainant merely received discipline, which did not necessarily indicate "disparate treatment" of Complainant but indicated that Employer did not view early quits as per se reasons for termination or serious breaches of conduct.

Accordingly, the Arbitrator issued an order on December 18, 1998, concluding that Complainant was guilty of conduct justifying discipline; that Employer in good faith offered Complainant an opportunity to return to work (if he acknowledged his misconduct); and that his refusal to acknowledge his misconduct resulted in termination. Because that termination was excessive under the circumstances, the Arbitrator reinstated Complainant with his seniority unimpaired, but did not award back pay because of Complainant's misconduct.

In the meantime, on August 12, 1998, Complainant filed a complaint with the Commission alleging violations of Section 5(d) the Act, which prohibits employers from retaliating against employees who file charges or otherwise engage in activity protected by the Act.³ In particular, Complainant alleged that his termination was retaliation for his prior actions of filing complaints with the NLRB, OSHA and the Commission or assisting other employees to file such complaints. The Commission held public hearing on four separate dates.

Relying on stipulations of fact based in large part on the Arbitrator's findings and on new testimony presented at the hearings, the Commission concluded that Employer violated Section 5(d) of the Act by retaliating against Complainant for his participation in filing complaints with employment agencies (such as the Commission) or assisting other employees to file such complaints.⁴ The Commission stated that Complainant met his prima facie burden of proving that (1) he was engaged in protected activity because he participated in numerous Commission hearings and opposed practices that were unlawful under the Act; (2) Employer was aware of Complainant's protected activity based on testimony by Employer's management employees indicating that they physically saw Complainant at Commission proceedings; and (3) subsequent to participating in this protected activity, Complainant suffered adverse employment action by Employer because he was suspended and then discharged. While the Commission also found that Employer met its burden of proving that it had a legitimate, non-discriminatory reason for the action taken against Complainant because Employer's reason for discharging Complainant was insubordination, it found that a causal connection existed between Complainant's participation in protected activity and his ultimate discharge because Complainant had established causation and met its additional burden of proving that Employer's reason for the suspension and discharge (i.e., insubordination for disobeying the order to return to work) was merely pretextual because (1) while he may have been insubordinate, other employees charged with insubordination were never discharged or even suspended, and, unlike Complainant, none of these employees ever participated in or assisted others with Commission complaints or proceedings; (2) Complainant was the only employee discharged for a first-time insubordination offense; (3) Employer's management employees told Complainant that they were tired of all the Commission proceedings instituted by employees; and (4) following the protected conduct, there was a "pattern of antagonism" against Complainant.

Responding to Employer's argument that the facts as found by the Arbitrator were preclusive and binding on the Commission in making...