Source: cases/29usc158/f3d-916-1095-novato.case
Case source: https://www.neochart.com/catalog/cases/f3d/volume_916/1095_01/index.html
An employer violates Section 8(a)(1) and (3) by suspending or discharging an employee for engaging in protected union activity.
we deny Novato's petition for review and grant the Board's cross-application for enforcement.
Given the absence of such evidence, combined with the contrary testimony that the ALJ reasonably credited, we find nothing unreasonable in the Board's conclusion that Novato failed to meet its burden of showing it would have fired the four employees notwithstanding its anti-union animus.
we uphold as reasonable its conclusion that Rocha's questioning was sufficiently coercive to violate the Act.
casedsl 1 case /f3d/916/1095-01 name Novato Healthcare Ctr. v. Nat'l Labor Relations Bd. cite 916 F.3d 1095 (2019) court Court of Appeals of the District of Columbia date 2019-03-05 url catalog/cases/f3d/volume_916/1095_01/index.html source ir/caselaw/f3d_916.jsonl sha1=acd38bf0aad2b477d6200040f819352ef84c5ff3 chars=34153 law 29usc158 (a) role applied posture Board found discriminatory discharges after an evidentiary hearing; court enforces order and separately affirms coercive questioning. result claimant-won element employment-discrimination : satisfied [proved] scope merits variant discharge/union-supporters-and-cover-discharge party four Station 4 union supporters; Rodriguez addressed separately in opinion fact @6368..6476 [supports] | On October 12, two days before the scheduled election, Treude fired all five employees for sleeping on duty. rule @8519..8646 | An employer violates Section 8(a)(1) and (3) by suspending or discharging an employee for engaging in protected union activity. held @844..937 | we deny Novato's petition for review and grant the Board's cross-application for enforcement. gloss The reviewing court upholds factfinder credibility and discriminatory motivation; the four union adherents and Rodriguez have different factual roles. defense same-decision : not-satisfied [proved] scope merits variant credibility/discredited-sleeping-on-duty-account party Station 4 employees fact @22785..22967 [cuts-against absent] | Novato proffers no other evidence that Brown and Sabelino were sleeping longer than their permitted break times and no other evidence that Metellus and Bernales were sleeping at all. held @22968..23256 | Given the absence of such evidence, combined with the contrary testimony that the ALJ reasonably credited, we find nothing unreasonable in the Board's conclusion that Novato failed to meet its burden of showing it would have fired the four employees notwithstanding its anti-union animus. gloss The defense fails following actual credibility findings, affirmed on review. This is not a demand that the employer prove no antiunion sentiment before the General Counsel’s first-stage showing. element interference : satisfied [law] scope merits variant interrogation/supervisor-asks-vote-near-election party Metellus theory Rocha interrogation fact @2122..2227 [supports] | Rocha asked Metellus, who was a relatively new employee, how he planned to vote in the upcoming election. fact @2228..2432 [supports] | When Metellus responded that he planned to vote in favor of the union, Rocha told him that doing so would have implications for his pay and that the union could potentially take a portion of his paycheck. held @28926..29035 | we uphold as reasonable its conclusion that Rocha's questioning was sufficiently coercive to violate the Act. gloss Unlike the casual question in Bozzuto, the timing, supervisor status and remarks about pay support the court’s coercion conclusion. misfit One neutral employee was discharged as cover for discriminatory discharges of supporters. A single block cannot express that evidentiary relationship without the party qualifier and gloss. misfit Result is from the perspective of the General Counsel or charging party asserting the employer unfair labor practice, not from the employer-petitioner’s appellate position.