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Relevant provisions of nlra l.jpg
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.”


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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 1970’s; 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”


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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


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TRANSPORTATION MANAGEMENT

Shifting Burden of Proof in Dual Purpose Discharge Cases

ON

GENERAL

COUNSEL:

Was anti-union

animus

(motive)

a factor in the

employer’s

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


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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


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