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The Statutory And Constitutional Limits Of Using Protected Speech As Evidence Of Unlawful Motive Under The National Labor Relations Act, Rebecca White
The Statutory And Constitutional Limits Of Using Protected Speech As Evidence Of Unlawful Motive Under The National Labor Relations Act, Rebecca White
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A difficulty inherent in cases under the National Labor Relations Act (NLRA), as in other areas of employment law, is in determining why the employer acted. Perhaps an even harder question, and one too frequently overlooked, is what form of evidence the National Labor Relations Board (NLRB or Board) and any reviewing court properly may consider in determining motive. More specifically, can the Board take into account an employer's vigorous opposition to the union in deciding whether or not a particular action was motivated by antiunion animus? Although common sense suggests yes, several courts of appeals have said no, relying …