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NLRB Cannot Show Unlawful Discharges Where Decision-Maker Was Unaware Of Employees’ Pro-Union Activity

Rejecting a National Labor Relations Board decision that two employees were unlawfully discharged for engaging in union activities because there was no evidence that the person who made the decision to discharge the workers knew that they had engaged in any union activity, a federal appeals court in Richmond has refused to enforce a Board order directing that the employees be reinstated to their jobs with back pay.

In Gestamp S.C., LLC v NLRB, Case No. 11-2362 (4th Cir., October 8, 2014), two union supporters were discharged after it was determined that they had falsified an application and time card.  The decision to discharge the employees was made by the Director of Human Resources.  There was no evidence she had any knowledge that the employees had been active union supporters.  It was undisputed, however, that two front-line supervisors did know that the discharged employees were actively supporting the union, and because of this, the Board’s administrative law judge found the discharges were unlawfully motivated.  The Board upheld that finding.

On appeal, the Board argued that it was not required to prove knowledge on the part of the decision-maker to show the terminations violated the National Labor Relations Act.  Instead, it said, the knowledge of the two supervisors that the employees had engaged in union activity should be imputed to the employer and another of its agents, the Human Resources Director.  The Court rejected this argument. It held that without evidence that the person who made the discharge decision had knowledge of the employees’ union activity, the finding that their discharge was unlawfully motivated could not be upheld.

Vicarious liability has vexed more than one employer.  The court’s decision, however, offers some assurance to employers, at least those in the states embraced by the Fourth Circuit (Md., Va., W.Va., N.C., and S.C.), that adverse personnel actions taken by a human resources or other management official for legitimate, non-discriminatory reasons will not be questioned later because of a first-line supervisor’s knowledge of an employee’s protected activity, of which the decision-maker was entirely unaware.

Jackson Lewis P.C. © 2022National Law Review, Volume IV, Number 296
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About this Author

Timothy J. Ryan, Labor and Employment Attorney, Jackson Lewis Law Firm
Principal

Timothy J. Ryan is a Principal in the Grand Rapids, Michigan, office of Jackson Lewis P.C. He has practiced exclusively in the labor and employment area since 1987, when he was admitted to the Bar.

Mr. Ryan is a frequent speaker and writer on topics including union avoidance, hiring and firing, family and medical leave, wage and hour laws, and other issues related to labor and employment law for employers. Mr. Ryan represents employers facing legal challenges in the following areas:

  • Union-Management...
616-940-0240
Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm
Principal

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

631-247-4611
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
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