The Union filed unfair labor practice charges against the Employer, alleging that the Employer violated Sections 8(a)(3) and (4) of the Act, by terminating an employee, who was the local union president. The employer manufactures pressure relief devices that are used in military and non-military applications in addition to packaging and shipping the finished products to customers. In short, the two motives cannot be mixed. Key to the holding was the reaffirmance that an unfair labor practice sounding in retaliation based on the motive of Board participation cannot be extrapolated from the evidence supporting an unfair labor practice of retaliation based union support, generally. With respect to the allegation of retaliation, the Board reasoned the General Counsel failed to meet its initial burden of showing that animus against the employee based on his utilization of the Board’s processes, as opposed to his union activities, was a motivating factor in the decision to terminate him. 90 (2021), held that an employer violated Section 8(a)(3) of the Act by discharging an employee for engaging in union activities, but found that the employer did not violate Section 8(a)(4), even though the employee participated and cooperated in Board proceedings over a previously-filed unfair labor practice charge.Īs to the allegation of whether the employer committed unlawful discrimination, the Board affirmed the ALJ’s finding of a Section 8(a)(3) violation based almost entirely on the timing of the discharge – i.e., that the employee was discharged shortly after engaging in protected activity. On February 19, 2021, the Board, in BS&B Safety Systems, LLC, 370 NLRB No. But, does an employer violate both sections of the Act under the same factual pattern?Īccording to the Board, not necessarily. Both require an analysis of the employer’s motivation. It is an unfair labor practice for an employer to retaliate against (1) union supporters pursuant to Section 8(a)(3) of the National Labor Relations Act (the “Act”), and (2) employees for filing a complaint with the National Labor Relations Board, testifying in a Board proceeding, or otherwise utilizing the Board’s processes, under Section 8(a)(4).
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