DC Circuit Says Pro-Union Discipline is Unfair Labor Practice - Employment Law - DC Circuit
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DC Circuit Says Pro-Union Discipline is Unfair Labor Practice

Here's a friendly Thanksgiving reminder from the D.C. Circuit Court of Appeals and the National Labor Relations Board (NLRB): Disciplining an employee for being an outspoken union supporter is an unfair labor practice.

Manor Care of Easton, Pennsylvania clearly does not want its employees to unionize; the nursing home disciplined one of its employees, "outspoken union supporter" Trisha Miechur, after she started promoting unionization at work.

The NLRB asserted that Miechur's supervisor, Debra Kushnerick, disciplined Miechur in violation of National Labor Relations Act. Under the Act, employers may not discourage unionization by discriminating in hiring or tenure decisions.

NLRB claims that Kushnerick:

  • Unlawfully confiscated Miechur's union literature.
  • Told Miechur to "stop worrying about the Union and worry about your job."
  • Issued Miechur a final warning - the last step before termination - after she urged Manor Care patients to support the union's cause.

(Sidebar. This footnote from the opinion might be our favorite footnote of the week: Manor Care concedes a number of other violations, including (1) unlawfully interrogating Miechur; (2) soliciting employee grievances to discourage unionization; (3) granting wage increases and lump sum bonuses to discourage unionization; and (4) confiscating union literature.)

To prevail in its claim, the NLRB had to demonstrate that union activity, which is protected, was a motivating factor in Miechur's discipline. This was a slam-dunk for the NLRB, (yes, that's an intentional nod to the recently-disbanded NBA union).

Manor Care admitted that Miechur's union activity was a motivating factor for her discipline, but tried to assert an affirmative defense that she would have been punished anyway. The D.C. Circuit Court of Appeals, however, noted that the NLRB had ample support to the contrary. In particular, NLRB argued that Manor Care disciplined Miechur without conducting an inquiry into her actions, and it had not investigated or punished other employees for similar actions.

Reprimanded employees could easily exploit union support to challenge disciplinary actions at work. Advise your clients that they should be consistent in their human resources policies to avoid unfair labor practice claims from the NLRB.

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