NLRB Rules Against Employer that Fired Employee for Giving Testimony to State Legislature

Mark Muir MillsThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of workers to organize for the purpose of collective bargaining with their employers. It prohibits discrimination or retaliation for engaging in union-related activities, as well as interference with those activities. The National Labor Relations Board (NLRB) is responsible for enforcing these protections, as well as ruling on disputes between employees and employers. A recent NLRB decision found that an employer engaged in unfair labor practices by terminating an employee for testifying before a legislative committee. Oncor Electric Delivery Co., 364 NLRB No. 58 (Jul. 29, 2016). The employer argued that the employee’s testimony was an individual act, rather than “concerted activity” protected by the NLRA. It further claimed that termination was justified because of “malicious falsehoods” in the employee’s testimony. Id. at 2. The NLRB rejected the employer’s arguments and ruled in the employee’s favor.

Section 8(a)(3) of the NLRA prohibits employers from using disparate treatment or other forms of discrimination to “encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). In order to demonstrate a violation of § 8(a)(3), an aggrieved employee must establish that they were engaging in activity protected by the NLRA, including both direct union activity and “concerted activity.” See NLRA § 7, 29 U.S.C. § 157. They must also show a causal connection between the employee’s protected activity and the employer’s adverse action. The NLRB calls this a Wright Line analysis, after Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982).

The Wright Line analysis requires an employee to establish four elements:  (1) their conduct was protected under the NLRA; (2) their employer knew about or suspected the employee’s conduct; (3) the employer “harbored animus” toward the employee because of the conduct; and (4) the employer took an adverse action against the employee because of this animus. Oncor at 22.

In 2012, the employee in Oncor was the chief negotiator for the union. It was engaging in collective bargaining with the employer, an “electric transmission and distribution utility compan[y],” id. at 1, to replace the contract set to expire. Shortly before beginning negotiations in October 2012, an officer with the employer mentioned upcoming hearings at the state legislature regarding “smart electric meters,” or “smart meters.” The employee reportedly told the officer that, if they did not make a deal that day, he would be “testifying before the senate commerce committee tomorrow about smart meters.” Id. The official said that “if [the employee] thought he needed to testify,” he should. Id. The employee’s testimony resulted in his termination in January 2013.

The NLRB found that, since the employee was acting as a union official when he testified, his testimony was “union activity” protected by the NLRA. The testimony served the union’s interests with regard to collective bargaining with the employer, and it dealt with an issue that directly affected union members’ working conditions. The NLRB was not persuaded by the employer’s “malicious falsehood” argument. It acknowledged that the employee’s testimony could be viewed as “imprecise” or “careless,” id. at 24, but it rejected claims that he acted recklessly or with malicious disregard for the truth. It found that the employee had met his burden under the Wright Line analysis.

If you need to speak with an attorney about a wrongful termination matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

NLRB Rules Against Company that Prohibited Employees’ Smartphone Use at Work, The New Jersey Employment Law Firm Blog, February 25, 2016

Digital Journalists in New York Vote to Unionize, Face Opposition from Publication, The New Jersey Employment Law Firm Blog, November 12, 2015

NLRB Issues Important Ruling Regarding “Joint Employers”, The New Jersey Employment Law Firm Blog, October 15, 2015

Photo credit: Thomas J. O’Halloran, U.S. News & World Report Magazine [Public domain], via Wikimedia Commons.

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