Wednesday, February 24, 2021
It is an unfair labor practice for an employer to retaliate against (1) union supporters pursuant to Section 8(a)(3) of the National Labor Relations Act (the “Act”), and (2) employees for filing a complaint with the National Labor Relations Board, testifying in a Board proceeding, or otherwise utilizing the Board’s processes, under Section 8(a)(4). Both require an analysis of the employer’s motivation. But, does an employer violate both sections of the Act under the same factual pattern?
According to the Board, not necessarily. On February 19, 2021, the Board, in
BS&B Safety Systems, LLC, 370 NLRB No. 90 (2021), held that an employer violated Section 8(a)(3) of the Act by discharging an employee for engaging in union activities, but found that the employer did not violate Section 8(a)(4), even though the employee participated and cooperated in Board proceedings over a previously-filed unfair labor practice charge.