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Firing an employee because he has engaged in union activity is an unfair labor practice under § 8(a)(1) and (a)(3) of the National Labor Relations Act (NLRA), 29 U.S.C.S. § 158(a)(1), (3). Under the Wright Line test, approved by the United States Supreme Court to prove an employee was fired because of anti-union animus, the National Labor Relations Board's (NLRB's) general counsel bears the burden of establishing a prima facie case of discrimination. The elements are: (1) the employee was engaged in protected activity; (2) the employer knew of the protected activity; and (3) the employee's protected activity motivated the adverse treatment. Anti-union motivation can be proven by circumstantial evidence. If the NLRB establishes that anti-union animus was a motivating factor in the employer's decision to fire the employee, the burden of persuasion switches to the employer to prove that it would have made the same employment decision regardless of the employee's union activity. If the employer's proffered justification for the decision is determined to be pre-textual, the NLRB is not obligated to consider whether the employer would have taken the same decision regardless of the employee's union activity.
Center Construction Co. (“company”) employed about 20 to 40 heating, ventilation, and air-conditioning workers who were represented by a sheet metal worker's union. The company also employed a licensed plumber and an apprentice plumber. The plumbers signed authorization cards and gave them to the plumbers' union. The company sent out discipline letters to striking workers and fired the licensed plumber based on his union activity. The company hired three non-union plumbers. The administrative law judge ("ALJ") held that firing for union activity was a "hallmark" violation. The National Labor Relations Board ("NLRB") unanimously agreed that the company committed unfair labor practices. The company appealed. The Board cross-petitioned for enforcement.
Under the circumstances, did the company commit an unfair labor practice under the National Labor Relations Act, thereby warranting the grant of the Board’s petition to enforce its judgment?
The Court held that firing an employee because he has engaged in union activity was an unfair labor practice under sections 8(a)(1) and 8(a)(3) of the NLRA. According to the Court, firing of a union activist was a hallmark violation, especially when that employee represented half the bargaining unit. The Court further noted that the company was found to have refused to hire union members in violation of the NLRA; interrogated a potential hire regarding his union sentiments; solicited employee grievances; surveilled employees engaged in protected activity; threatened co-workers honoring a picket line; and forbidden the display of the union insignia. Accordingly, the Board’s petition to enforce was granted.