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 251 N.L.R.B. 1083; 1980 NLRB LEXIS 1639; 105 L.R.R.M. 1169; 1980 NLRB Dec. (CCH) P17,356; 251 NLRB No. 150

National Labor Relations Board

August 27, 1980

Case 1-CA-14004




 [*1083]  On October 27, 1978, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and counsel for the General Counsel filed a brief in support of the Administrative Law Judge's Decision.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, 1 findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2


Respondent excepted, inter alia, to the Administrative Law Judge's conclusion that it violated Section 8(a)(3) and (1) of the Act when, on December 30, 1977, it discharged Bernard Lamoureux. We agree with the result reached by the Administrative Law Judge, but only for the reasons that follow.

In resolving cases involving alleged violations of Section 8(a)(3) and, in certain instances, Section 8(a)(1), it must be determined,  [**3]  inter alia, whether an employee's employment conditions were adversely affected by his or her engaging in union or other protected activities and, if so, whether the employer's action was motivated by such employee activities. As discussed infra, various "tests" have been employed by the Board and the courts to aid in making such determinations. These tests all examine the concept of "causality," that is, the relationship between the employees' protected activities and actions on the part of their employer which detrimentally affect their employment.

The Administrative Law Judge's Decision in the instant case reveals some uncertainty regarding the appropriate mode of analysis for examining causality in cases alleging unlawful discrimination. Indeed, similar doubts as to the applicable test appear to have become widespread at various levels of the decisional process primarily as a result of conflict in this area among the courts of appeals and between certain courts of appeals and the Board.

After careful consideration we find it both helpful and appropriate to set forth formally a test of causation for cases alleging violations of Section 8(a)(3) of the Act. We shall examine [**4]  causality in such cases through an analysis akin to that used by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).

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 251 N.L.R.B. 1083 *;  1980 NLRB LEXIS 1639 **;  105 L.R.R.M. 1169;  1980 NLRB Dec. (CCH) P17,356;  251 NLRB No. 150



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