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.13 Quite frequently theemployer has more than one reason for a dismissal.The Court'srecent rulings make it difficult for an employee with a less thanunblemished record to succeed in such cases.Nonetheless, the NLRB adopted the Supreme Court's test in FirstAmendment cases for purposes of the NLRA in Wright Line:14".we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protectedconduct was a 'motivating factor' in the employer's decision.Once this is established, the burden will shift to the employer todemonstrate that the same action would have taken place evenin the absence of the protected conduct."15 The NLRB stressedthat the General Counsel still has the burden of producing thepreponderance of evidence to establish a violationthe burdenthat the General Counsel assumes in any unfair labor practiceproceeding before the Board.As a practical matter, however, theslight burden that is thrust upon the General Counsel as part ofthe prima facie case and the explicit burden on the company tocome forward with reasons for the action may give the GeneralCounsel access to important information at an early pointpage pagePage 64in the hearing and thus a competitive advantage that he or shewould not otherwise enjoy.The Supreme Court unanimously affirmed the Board's position inNLRB v.Transportation Management Corp.16 Justice ByronWhite, the author of the Court's opinion, specifically approved ofthe Board's burden-shifting rules relating to the employer'sobligation to produce evidence subsequent to a showing thatillegal conduct was a substantial or motivating factor in thetreatment of the worker.Said the Court:The employer is a wrongdoer; he has acted out of a motivethat is declared illegitimate by the statute.It is fair that hebear the risk that the influence of legal and illegal motivescannot be separated, because he knowingly created the riskand because the risk was created not by innocent activity butby his own wrongdoing.17The Court stated that the proviso in section 10(c) of the Taft-Hartley Act that seems to separate (and thus put out of the law'sreach) discharges "for cause" from those interdicted by thestatute has no applicability to mixed-motive cases.Said theCourt:The "for cause" proviso was not meant to apply to cases inwhich both legitimate and illegitimate causes contributed tothe discharge.The amendment was sparked by a concern over the Board's perceived practice of inferring fromthe fact that someone was active in a union that he was firedbecause of antiunion animus even though the worker hadbeen guilty of gross misconduct.18Where employer conduct is "inherently destructive" ofemployees' self-organization rights, no proof of an antiuniondiscriminatory intent is necessary to establish that the law hasbeen violated.19 In some circumstances the focus will be on theimpact of the employer's conduct on the employee.20Union Access to Company PropertyOne of the major problems a union is confronted with in anorganizational campaign is how to communicate with theemployees it seeks to organize.The leading case in this regard isRepublic Aviation Corp.v.NLRB,21in which the employer hadprohibited all solicitation in the factory or offices on companyproperty.An employee who had beenpage pagePage 65warned of the rule solicited union membership in the plant bypassing out application cards to employees during his own freetime on the lunch break.He was dismissed.Three otheremployees were dismissed for wearing UAW-CIO caps and unionsteward buttons in the plant after being requested to removethem.The NLRB found that the dismissal of the workers, and alsothe rule itself, constituted unfair labor practices, and thattherefore the employer's conduct had improperly interfered withthe employees right to "organize mutual aid without employerinterference." 22 The special problem posed in this case was thatthere was no evidence that the plant's location made solicitationaway from company property ineffective in reaching prospectiveunion members.Thus the employer contended that the unioncould communicate elsewhere without interfering with thecompany's property rights.However, the Supreme Courtapproved the NLRB's conclusion that the employer had nobusiness justification for precluding the activity outside of workhours and that such a rule could therefore be presumed to be an"unreasonable impediment to self-organization" and unnecessaryin connection with the maintenance of production ordiscipline.23A number of basic issues involving employee activity and thepromulgation of rules by the employer have plagued the Boardfor years [ Pobierz całość w formacie PDF ]
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.13 Quite frequently theemployer has more than one reason for a dismissal.The Court'srecent rulings make it difficult for an employee with a less thanunblemished record to succeed in such cases.Nonetheless, the NLRB adopted the Supreme Court's test in FirstAmendment cases for purposes of the NLRA in Wright Line:14".we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protectedconduct was a 'motivating factor' in the employer's decision.Once this is established, the burden will shift to the employer todemonstrate that the same action would have taken place evenin the absence of the protected conduct."15 The NLRB stressedthat the General Counsel still has the burden of producing thepreponderance of evidence to establish a violationthe burdenthat the General Counsel assumes in any unfair labor practiceproceeding before the Board.As a practical matter, however, theslight burden that is thrust upon the General Counsel as part ofthe prima facie case and the explicit burden on the company tocome forward with reasons for the action may give the GeneralCounsel access to important information at an early pointpage pagePage 64in the hearing and thus a competitive advantage that he or shewould not otherwise enjoy.The Supreme Court unanimously affirmed the Board's position inNLRB v.Transportation Management Corp.16 Justice ByronWhite, the author of the Court's opinion, specifically approved ofthe Board's burden-shifting rules relating to the employer'sobligation to produce evidence subsequent to a showing thatillegal conduct was a substantial or motivating factor in thetreatment of the worker.Said the Court:The employer is a wrongdoer; he has acted out of a motivethat is declared illegitimate by the statute.It is fair that hebear the risk that the influence of legal and illegal motivescannot be separated, because he knowingly created the riskand because the risk was created not by innocent activity butby his own wrongdoing.17The Court stated that the proviso in section 10(c) of the Taft-Hartley Act that seems to separate (and thus put out of the law'sreach) discharges "for cause" from those interdicted by thestatute has no applicability to mixed-motive cases.Said theCourt:The "for cause" proviso was not meant to apply to cases inwhich both legitimate and illegitimate causes contributed tothe discharge.The amendment was sparked by a concern over the Board's perceived practice of inferring fromthe fact that someone was active in a union that he was firedbecause of antiunion animus even though the worker hadbeen guilty of gross misconduct.18Where employer conduct is "inherently destructive" ofemployees' self-organization rights, no proof of an antiuniondiscriminatory intent is necessary to establish that the law hasbeen violated.19 In some circumstances the focus will be on theimpact of the employer's conduct on the employee.20Union Access to Company PropertyOne of the major problems a union is confronted with in anorganizational campaign is how to communicate with theemployees it seeks to organize.The leading case in this regard isRepublic Aviation Corp.v.NLRB,21in which the employer hadprohibited all solicitation in the factory or offices on companyproperty.An employee who had beenpage pagePage 65warned of the rule solicited union membership in the plant bypassing out application cards to employees during his own freetime on the lunch break.He was dismissed.Three otheremployees were dismissed for wearing UAW-CIO caps and unionsteward buttons in the plant after being requested to removethem.The NLRB found that the dismissal of the workers, and alsothe rule itself, constituted unfair labor practices, and thattherefore the employer's conduct had improperly interfered withthe employees right to "organize mutual aid without employerinterference." 22 The special problem posed in this case was thatthere was no evidence that the plant's location made solicitationaway from company property ineffective in reaching prospectiveunion members.Thus the employer contended that the unioncould communicate elsewhere without interfering with thecompany's property rights.However, the Supreme Courtapproved the NLRB's conclusion that the employer had nobusiness justification for precluding the activity outside of workhours and that such a rule could therefore be presumed to be an"unreasonable impediment to self-organization" and unnecessaryin connection with the maintenance of production ordiscipline.23A number of basic issues involving employee activity and thepromulgation of rules by the employer have plagued the Boardfor years [ Pobierz całość w formacie PDF ]