Relevant Provisions of NLRA

1
Relevant Provisions of NLRA

• 8(a) Unfair labor practices by employer. It
  shall be an unfair labor practice for an employer
  . . . (3) by discrimination in regard to hire
  or tenure of employment or any term or condition
  of employment to encourage or discourage
  membership in any labor organization . . .
  
• 10(c) . . . No order of the Board shall require
  the reinstatement of any individual as an
  employee who has been suspended or discharged, or
  the payment to him of any back pay, if such
  individual was suspended or discharged for
  cause.

2
Dual Motive Discharge

• Conflict between Board and Courts
• Wright Line issued in 1980
• Cited Mt. Healthy Bd. Ed. v. Doyle, 429 U.S. 274,
  1977
• Enforced or not?
• Enforced NLRB v. Wright Line, 662 F.2d 899,909
  (1981)
• Enforcement denied, NLRB v. Trans. Mgt., 462 U.S.
  393, 400 (1983)
• who bears burden of showing discharge would have
  occurred GC or Er?
• GC did not give up
• Adverse Court decisions in dual motive cases
  back to 1968 and into 1970s violation if GC
  met
• dominant motive test (1st, 9th Circuits)
• reasonably equal (5th Circuit)
• But also in part test (3rd, 4th,7th, 10th
  Circuits)
• Supreme Court took 15 years to resolve dispute
• waits for ripeness

3
Transportation Management

• Shifting burden of proof
• on GC to show prima facie case that union
  activity a factor in decision
• on Er to show discharge\discipline would have
  occurred in absence of anti union motivation
• Er in best position to rebut prima facie case

4
TRANSPORTATION MANAGEMENT Shifting Burden of
Proof in Dual Purpose Discharge Cases
ON GENERAL COUNSEL Was anti-union
animus (motive) a factor in the employers
decision to discharge the employee?
ON EMPLOYER Would the discharge have occurred
in the absence of concerted activity?
Violation Will Be Found
YES
NO
NO
YES
No Violation
No Violation
5
Elements General Counsel Must Show

• 1. Activity that is protected by Act
• 2. Employer aware of protected activity.
• 3. Adverse employment action suffered by ee(s)
• 4. A link between adverse employment action and
  protected activity
• Wright Line, 251 NLRB 1083, 1980, efd. 662 F.2d
  899 (1st Cir., 1981), cert. Den. 455 U.S. 989,
  see also Manno Electric, 321 NLRB 278, 280 at fn
  12 (1996)

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Application to Trans. Management

• General Counsel Elements of Burden
• 1. Activity that is protected by Act
• Santillo attempting to organize drivers
• 2. Employer aware of protected activity.
• Supervisor statements to Santillo (two-faced,
  get even)
• 3. Adverse employment action suffered by ee(s)
• Discharge
• 4. link between adverse employment action and
  protected activity
• Proximity in time between supervisor statement
  and discharge
• Employer Occurred in any event?
• Keys in bus a common occurrence
• Decision made before superv. aware of keys
• No customary warnings on breaks