Key Recent NLRB Decisions; Christine K. D. Belcaid, Esq.

Electrolux Home Prods., Inc., 368 NLRB No. 34 (Aug. 2, 2019)

The employer did not violate Sections 8(a)(3) and (1) by discharging an employee union activist even though the employer’s justification for terminating her was a made-up excuse. The NLRB General Counsel failed to carry his burden of demonstrating the employee’s union activity was a motivating factor in her discharge. The Board explained:

When an employer has offered a pretextual reason for discharging or disciplining an alleged discriminate, the real reason might be animus against union or protected concerted activities, but then again it might not. It is possible that the true reason might be a characteristic protected under another statute (such as the employee’s race, gender, religion, or disability), or it could be some other factor unprotected by the Act or any other law, which would be a permissible basis for action under the at-will employment doctrine.

Nat’l Hot Rod Ass’n, 368 NLRB No. 26 (July 29, 2019)

The employer violated Section 8(a)(1) by soliciting employee grievances and impliedly promising to remedy them, and by advising employees that they could not be rehired for the following year until after the union election, and possibly even longer if the union won. However, the employer did not unlawfully create an impression that employees’ union activities were under surveillance, nor did the employer unlawfully discharge an employee who had engaged in union activities because the employer reasonably believed the employee failed to perform his duties on the day at issue.

Walmart Stores, Inc., 368 NLRB No. 24 (July 25, 2019)

Walmart did not violate Section 8(a)(1) when it terminated employees for breaking its attendance policy when they left work for nearly one week to protest Walmart’s annual shareholders’ meeting. The protest was an unprotected intermittent strike, which is a strike pursuant to a plan to strike, return to work, and strike again, all in pursuit of the same goal.

Categories: Labor Law Blog