DEFENSE · 29usc158:same-decision
Judge/Board-made burden structure anchored to the purpose hook, not words of the statute. Applies only after the General Counsel proves the initial unlawful-motivation case.
Exact element source
to encourage or discourage membership in any labor organizationSource:
docroot/ir/usc/title29.jsonl#title29_sec158; Unicode character offsets [739:802] (end exclusive); SHA-256 caadb20cedf4fd4e200812fc0ec46617cc7978ef7a6b0a30e355bccfeb7e0d06.Routes and case patterns
| Route | Definition | Merits instance blocks | Distinct merits cases | Examples (up to 3 cases per count group) |
|---|---|---|---|---|
| _whole accepted; 4 observed cases | The element is decided as a whole: the reasoning turns on no narrower doctrinal sub-question that distinguishes it from any other application of this element. | 4 Satisfied 0; not satisfied 4; excluded context 0 | 4 | Airgas USA, LLC v. Nat'l Labor Relations Bd. — 916 F.3d 555 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 — not · proved (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) · applied/merits · counted Novato Healthcare Ctr. v. Nat'l Labor Relations Bd. — 916 F.3d 1095 (2019) · Court of Appeals of the District of Columbia · 2019 — not · proved (29usc158: author: Astra4 · not independently reviewed) · applied/merits · counted Erickson Trucking Serv., Inc. v. Nat'l Labor Relations Bd. — 929 F.3d 393 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 — not · proved (29usc158: author: Astra4 · not independently reviewed) · applied/merits · counted |
How courts decided this element
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| Airgas USA, LLC v. Nat'l Labor Relations Bd. — 916 F.3d 555 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 — not · proved (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Same action absent unlawful motive | not Counted merits instance applied / merits basis: proved; party: Airgas USA, LLC; count: § 8(a)(4) written warning; subject: party=Airgas USA, LLC; count=§ 8(a)(4) written warning Added on triage. Wright Line's second stage as applied to a § 8(a)(4) charge: the employer's burden failed because its reasons were found pretextual, a finding the court upholds. | employer's safety and prior-violation justifications for written discipline found pretextual; prior violation first invoked seven weeks later | If the employer's proffered justification is determined to be pretextual, the Board need not consider it.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/0555-01; Unicode character offsets [25740:25845] (end exclusive); SHA-256 a292fcc7b8584d5055a83c8af1797ed65202eb7b05a3173322cd95d6c9e16a74.Then, in late June, Airgas suspended Rottinghouse for three days for completing DOT paperwork after clocking out.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/0555-01; Unicode character offsets [1625:1738] (end exclusive); SHA-256 a292fcc7b8584d5055a83c8af1797ed65202eb7b05a3173322cd95d6c9e16a74.The first time Froslear mentioned the prior violation was the September 23 grievance meeting.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/0555-01; Unicode character offsets [26732:26825] (end exclusive); SHA-256 a292fcc7b8584d5055a83c8af1797ed65202eb7b05a3173322cd95d6c9e16a74.Froslear instead read Article 22 of the Collective Bargaining Agreement-in essence, responding that because Article 22 does not mention verbal warnings, a written warning was appropriate for any infraction.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/0555-01; Unicode character offsets [27488:27694] (end exclusive); SHA-256 a292fcc7b8584d5055a83c8af1797ed65202eb7b05a3173322cd95d6c9e16a74.The Board's finding of pretext was therefore supported by substantial evidence, and it was not obligated to consider the justification any further.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/0555-01; Unicode character offsets [28491:28638] (end exclusive); SHA-256 a292fcc7b8584d5055a83c8af1797ed65202eb7b05a3173322cd95d6c9e16a74. |
| Novato Healthcare Ctr. v. Nat'l Labor Relations Bd. — 916 F.3d 1095 (2019) · Court of Appeals of the District of Columbia · 2019 — not · proved (29usc158: author: Astra4 · not independently reviewed) | Same action absent unlawful motive | not Counted merits instance applied / merits basis: proved; claim: (a); party: Station 4 employees; subject: party=Station 4 employees 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. | credibility/discredited-sleeping-on-duty-account | 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.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/1095-01; Unicode character offsets [22785:22967] (end exclusive); SHA-256 619b4737a25b3eff7f5171fe7092f24823bff6f7ac6a4f4f000ee78df3a3dcc2.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.Source: docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/1095-01; Unicode character offsets [22968:23256] (end exclusive); SHA-256 619b4737a25b3eff7f5171fe7092f24823bff6f7ac6a4f4f000ee78df3a3dcc2. |
| Erickson Trucking Serv., Inc. v. Nat'l Labor Relations Bd. — 929 F.3d 393 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 — not · proved (29usc158: author: Astra4 · not independently reviewed) | Same action absent unlawful motive | not Counted merits instance applied / merits basis: proved; claim: (a) The court sustains the Board’s rejection of the claimed business-only reason, using comparative history and contemporaneous statements. | business-rationale/past-crane-sales-without-discharges | Yet until then he had never fired a crane operator.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0393-01; Unicode character offsets [12678:12729] (end exclusive); SHA-256 859f942fccda81455b75cdf787d5a7c40e108f8f20c84015167835c1180ed92b.Making matters harder to justify, Erickson said that he would reverse his decision if the Local changed its ways.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0393-01; Unicode character offsets [11782:11895] (end exclusive); SHA-256 859f942fccda81455b75cdf787d5a7c40e108f8f20c84015167835c1180ed92b.We disagree. The conclusion was a reasonable one on this record.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0393-01; Unicode character offsets [10823:10887] (end exclusive); SHA-256 859f942fccda81455b75cdf787d5a7c40e108f8f20c84015167835c1180ed92b. |
| St. Paul Park Ref. Co. v. Nat'l Labor Relations Bd. — 929 F.3d 610 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 — not · proved (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Same action absent unlawful motive | not Counted merits instance applied / merits basis: proved; party: St. Paul Park Refining Company; count: Wright Line affirmative defense; subject: party=St. Paul Park Refining Company; count=Wright Line affirmative defense The defence failed on the ALJ's credibility findings (a trier's finding against the employer, hence [proved], not [no-evidence]), which the court declines to disturb. | employer's misconduct justification (insubordination, belligerence) not credited by the ALJ; evolving stories and inadequate investigation | "[I]t is not enough that an employer put forth a nondiscriminatory justification for discipline. It must be the justification."Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0610-01; Unicode character offsets [13029:13156] (end exclusive); SHA-256 39d1fec63df83079263c35248b62c671e36c05cf4be05a0f93531bfbb5b46224.Topor and Regenscheid began speaking in loud voices.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0610-01; Unicode character offsets [3833:3885] (end exclusive); SHA-256 39d1fec63df83079263c35248b62c671e36c05cf4be05a0f93531bfbb5b46224.At times, the reason for Topor's discipline was described as his refusal to work, then his refusal to discuss mitigation, and finally his belligerent behavior.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0610-01; Unicode character offsets [12157:12316] (end exclusive); SHA-256 39d1fec63df83079263c35248b62c671e36c05cf4be05a0f93531bfbb5b46224.Three days later, Jung modified her statement, adding that Topor was loud and had pointed his finger at Regenscheid.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0610-01; Unicode character offsets [4559:4675] (end exclusive); SHA-256 39d1fec63df83079263c35248b62c671e36c05cf4be05a0f93531bfbb5b46224.The ALJ did not credit SPPRC's allegation that Topor misbehaved and therefore did not credit its defense that it acted based on that belief.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0610-01; Unicode character offsets [13184:13324] (end exclusive); SHA-256 39d1fec63df83079263c35248b62c671e36c05cf4be05a0f93531bfbb5b46224.Considering SPPRC's evolving stories and inadequate investigation, this case does not involve "extraordinary circumstances" justifying the reversal of the ALJ's credibility findings.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0610-01; Unicode character offsets [13325:13507] (end exclusive); SHA-256 39d1fec63df83079263c35248b62c671e36c05cf4be05a0f93531bfbb5b46224. |
Court interpretations
interpretation
"Once a prima facie case has been established, the burden [of persuasion] shifts to the company to show that it would have taken the same action in the absence of the unlawful motive."
Novato Healthcare Ctr. v. Nat'l Labor Relations Bd. — 916 F.3d 1095 (2019) · Court of Appeals of the District of Columbia · 2019 (29usc158: author: Astra4 · not independently reviewed)
"Once a prima facie case has been established, the burden [of persuasion] shifts to the company to show that it would have taken the same action in the absence of the unlawful motive."Source:
docroot/ir/caselaw/f3d_916.jsonl#/f3d/916/1095-01; Unicode character offsets [9569:9753] (end exclusive); SHA-256 619b4737a25b3eff7f5171fe7092f24823bff6f7ac6a4f4f000ee78df3a3dcc2.Judge/Board-made burden structure anchored to the purpose hook, not words of the statute. Applies only after the General Counsel proves the initial unlawful-motivation case.