After being previously warned, a worker was fired for safety violations. But the worker says he was really fired for union activity. How did a judge rule in this case?
Jorge Tavares was a technician for Dish Network working out of an office in Farmers Branch, Texas.
One day, a supervisor observed Tavares on a ladder without a bump cap, safety glasses and gloves.
Just a month earlier, Tavares had received a final warning about safety after three infractions.
So the ladder incident was the last straw.
Tavares was also involved in union negotiations with Dish.
After his firing, the union took the case to the National Labor Relations Board (NLRB), claiming Tavares was unfairly fired for his union activities.
Can PPE fly off a worker?
At a hearing before an NLRB judge, Tavares told a story that was different from what the supervisor reported.
He says he had gloves on, and he also claims that when he heard the supervisor call to him, he turned his head so quickly that his bump cap and safety glasses flew off his head.
Tavares and his union also claimed that safety rules had been enforced haphazardly.
The general manager of the Farmers Branch Dish office admitted that safety enforcement had been lax in the past.
But the GM said when he began supervising the facility five months before the incident that led to Tavares’ firing, he decided to turn around the office that was one the worst performing for Dish.
Part of his efforts revolved around safety. The GM decided to re-educate workers about safety and enforce disciplinary action for violators.
Following the new emphasis on safety, several technicians were fired for safety infractions. Tavares wasn’t the only one.
The GM said he fired Tavares because he:
- received a final written warning for 3 serious safety violations shortly before his firing
- received extensive prior training about safety rules and was aware that safety had been elevated to a top priority, and
- committed the offense in question and fabricated the story that his bump cap and glasses fell off.
At the hearing, the supervisor who caught Tavares without the PPE put on one of the bump caps and bent over. The cap stayed on his head.
The NLRB judge said:
- He believed the testimony of the supervisor who was straightforward and honest.
- Tavares’ claim that his PPE fell off was implausible. “It is improbable that he turned his head with such torque that his PPE rocketed off,” the judge wrote. And the supervisor demonstrated that the bump cap would be difficult to shake off.
The judge said Dish proved it would have taken the same action against Tavares even if he hadn’t participated in union activity.
For these reasons, the judge ruled Dish lawfully disciplined and fired Tavares.
Note (especially for those of you who also deal with HR): Dish lost a part of this case. The judge ordered Dish to rescind its policies prohibiting its workers from
- posting critical comments about the company online
- talking to the media without permission from management, and
- contacting government agencies without permission from management.
What do you think about the ruling (PDF)? Let us know in the comments below.
(Dish Network Corp. v. Communication Workers of America, NLRB No. 16-CA-62433, 11/14/12)
