Published on
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By: Magdee (Alex) Besharat*
Strategic Technology Institute v. NLRB, 87 F.4th 900 (2023).
I. Introduction
The National Labor Relations Act (NLRA) prohibits employers from taking adverse employment actions on the basis of employees supporting or not supporting a union or the employees’ union-related action.[1] For example, an employer discharging an employee after discovering the employee was communicating with co-workers to unionize has violated § 8(a)(3).[2] In the absence of smoking gun evidence, the surrounding circumstances—such as timing of the discharge—may be used to reveal an employer’s intent to discriminate.[3] But would the employer avoid liability if it fired an employee trying to convince others to unionize, those with whom the employee communicated, and eight others picked at random? For years, the National Labor Relations Board (NLRB or Board) was able to find a violation of § 8(a)(3) by applying the Mass Discharge theory, which applies when employers discharge large groups of employees in a single act to discourage protected activity.
However, in Strategic Technology Institute v. NLRB, the U.S. Court of Appeals for the Eighth Circuit refused to adopt the Mass Discharge theory. The Eighth Circuit’s failure to recognize circumstantial evidence to support a claim of § 8(a)(3) discrimination in a case of mass, indiscriminate discharge left employees who were discharged for reasons prohibited by the NLRA without relief. Section II of this Note will discuss the particular facts of Strategic Technology Institute and the holdings of both the Board and Eighth Circuit. Section III will detail the history of the NLRA, unfair labor practices an employer may commit, the Wright Line test, and how the Mass Discharge theory alters the Wright Line analysis. Section IV presents the Eighth Circuit’s decision and it’s analysis. Finally, Section V proceeds in two parts: (1) a discussion of the Mass Discharge theory and the theory’s benefits and (2) an explanation of how the theory would apply in Strategic Technology Institute.
II. Facts and Holding
Strategic Technology Institute (STI) is a corporation the United States government contracts with to provide aircraft maintenance services for the United States Air Force within Little Rock, Arkansas.[4] STI assigned Tyler Boyd as the manager for the contract between STI and the Air Force.[5] Boyd remotely supervised the Little Rock facility from Texas.[6] Boyd interacted with the Little Rock facility through the assistance of the site supervisor, Gerald Kiihnl.[7] Boyd became increasingly dissatisfied with the Little Rock employees’ performance of the contract and, after discovering union activity in the facility, fired seventeen employees during the months of September and October 2019.[8]
The employees’ discussion of unionizing the branch began the summer prior to the terminations.[9] Boyd learned of the unionization efforts on August 30, 2019, through an exit interview that Kiihnl conducted.[10] From the beginning of unionization efforts to the time of the firing of employees, the Air Force had issued STI five corrective action reports (CAR) for safety and performance issues.[11] A particularly notable CAR the Air Force issued against STI occurred on September 18, 2019, when employees left a screwdriver in an aircraft engine STI had serviced.[12] The CAR required STI to explain any remedies it would take to prevent similar issues from arising.[13] Kiihnl informed the government inspector of the steps STI was taking to prevent similar issues, which the inspector approved.[14] But, at Boyd’s request, Kiihnl investigated further, found the three employees involved in the September 18 CAR, and verbally reprimanded them.[15] None of the three employees had received any discipline prior to that CAR.[16] Boyd, however, was unsatisfied with a verbal reprimand and discharged them.[17]
In connection with the September 18 CAR, Boyd asked Kiihnl to score and rank the STI employees in the Little Rock location.[18] Kiihnl created three categories to score the employees: (1) performance, (2) attendance, and (3) cooperation with each other.[19] Kiihnl scored each employee a three out of five in each category and placed them in a random order for the ranking.[20] Despite these oddities, Boyd discharged the “bottom” fourteen employees on Kiihnl’s list.[21] STI’s human resource department informed the fourteen employees that their discharge was due to their poor performance.[22]
After the discharges, Boyd inserted counseling forms–without the knowledge of the discharged employees–into the personal files of the fourteen employees. The counseling forms cited to previous CAR violations. Some of the employees had CARs cited in their forms concerning incidents that occurred prior to their employment at STI.After the , STI’s performance on the contract deteriorated,[23] and the Air Force became concerned that STI could not meet its obligations.[24] Kiihnl resigned the day after Boyd fired the fourteen employees.[25] Boyd replaced Kiihnl with Jeffery Pittman,[26] who requested reinstatement of three of the employees previously discharged due to the ranking.[27] These employees compromised 50% of a 6-person cell team.[28] None of the three employees within the cell team were connected with any of the CARs.[29] Of the three employees, two were already “cell qualified,” and the third was one test away from becoming “cell qualified.”[30] In Pittman’s request to rehire the three employees, he stated that he did not “think previous management considered all aspects of these individuals’ value to the organization when they were rated.”[31] In the meantime, the International Association of Machinists and Aerospace Workers (Union), which represented the Little Rock facility employees, filed for recognition with the Board, receiving majority support and an election on November 1.[32] The Union then brought a complaint against STI.[33]
The NLRB’s General Counsel (General Counsel) subsequently charged STI with violations of §§ 8(a)(1) and 8(a)(3) for the firing of the seventeen employees.[34] The General Counsel argued that STI began taking “draconic” action against the employees after Boyd learned of the unionization efforts.[35] The Administrative Law Judge found that the claims of misconduct and verbal warnings against the fourteen employees were “outright lies.”[36] The timing of the firings, along with Boyd’s direct knowledge of the union activity, rendered STI’s “performance” justification pretextual.[37] In rebuttal, STI argued that the General Counsel failed to carry its burden of proof in that the General Counsel did not show the firings were motivated by anti-union animus.[38] The Administrative Judge, whose decision was later affirmed by the Board, found that STI had violated §§ 8(a)(1) and 8(a)(3) of the NLRA in the termination of the seventeen[39] The Eighth Circuit, however, reversed, holding that the Board failed to show a “nexus between anti-union animus and the terminations” and that the Board failed on the first step of the Wright Line[40] The Board then requested rehearing from the Eighth Circuit en banc or rehearing by a panel; both requests [41]
III. Legal Background
Part A of this section will discuss the history of the NLRA. Part B will discuss potential unfair labor practices an employer may commit against employees, mainly focusing on § 8(a)(3). Part C will discuss the Wright Line Test, the main tool used to determine whether a § 8(a)(3) violation occurred. Part D will discuss the Mass Discharge theory, a Board-created modification of the Wright Line Test for cases involving mass discharges.
A. History of the NLRA
Congress passed the NLRA in 1935.[42] Worried about employers’ ability to suppress wages and burden the flow of commerce, Congress wanted employees to have the right to organize and bargain with an employer over wages and working conditions without fear of retaliation, interference, or discrimination by the employer.[43]
B. Unfair Labor Practices
Most states allow employers to fire employees at will.[44] But the NLRA constrains an employer’s right to discharge an employee at will.[45] Section 8(a) of the NLRA lists five ways an employer could commit “unfair labor practices” against an employee.[46]
Section 8(a)(1) violations require the General Counsel to show only that an employer interfered with an employee exercising her rights.[47] Accordingly, in a § 8(a)(1) claim, the employer’s conduct alone controls whether a violation occurred; motive is not a consideration.[48]
Section 8(a)(3), on the other hand, requires a showing of some kind of union animus as a motivating factor,[49] and the discharge must be done “with the intent of discouraging participation in union activities.”[50] To determine intent, the threshold question is whether an employer was armed with knowledge of union activity when taking the action.[51]
C. Wright Line Test
While employers possess wide discretion in discharging an employee, the NLRA limits this discretion.[52] Employers may often act within their management rights while being influenced by their employees’ unionization efforts.[53] A dual motive case occurs when there is not only evidence of anti-union discrimination—or unfair labor practice under the NLRA––but also a legitimate and plausible business reason for the discharge.[54]
To resolve dual motive cases, the Board created the “in part” causation test.[55] Under this test, a discharge of an employee violates the Act even where the employer relied on a “legitimate business reason” so long as the employer was at least partially motivated by anti-union animus.[56] Judicial distaste for the Board’s “in part” test led to circuits courts applying their own tests for dual-motive cases[57] In response, the Board scrapped the “in part” test and created the Wright Line test, which the Supreme Court approved in 1983.[58]
The Board applies the Wright Line test to determine whether an employer’s discharge decision was motivated by anti-union animus.[59] To prove anti-union animus, the General Counsel must show that: (1) the employees engaged in protected activity,[60] (2) the employer knew about the protected activity, and (3) the protected activity played a substantial motivating role in the employer’s decision to discharge the employees.[61] Regarding the second prong, the employer’s knowledge of the union activity needs to extend to the individual employees’ union activity.[62] The General Counsel bears the burden of proof, and if it carries its burden, then the employer may rebut the evidence by demonstrating that the adverse employment action would still have been taken absent the protected activity.[63] If successful, this demonstration acts as an affirmative defense.[64]
In every case involving a § 8(a)(3) violation and application of Wright Line, the goal is to determine whether the employees’ union activity played a substantial motivating factor in the employer’s decision to discharge those employees.[65] The Board has not set out an official set of factors to consider, but it often considers circumstantial evidence to determine whether there was unlawful motive in the discharge of employees.[66]
Certain facts may be determinative. One such fact is the “timing” of an adverse action, which can strongly indicate anti-union animus.[67] The analysis turns on whether the employer made the decision to fire an employee after the union activity began.[68] If an employer decided to fire an employee before learning of protected activity, this fact would naturally negate any showing of anti-union animus.[69] However, the passage of time, by itself, does not negate discriminatory intent since the pretext to discharge an employee could appear later.[70]
There are a few other factors the Board has relied on in finding anti-union animus. Another factor indicating anti-union animus is a lack of warning prior to a discharge, especially where an employer usually would give a warning.[71] The Board tends to scrutinize cases where an employer’s practice deviates from previous practice.[72] Similarly, the Board will closely scrutinize situations in which an employer gives inconsistent statements or explanations about the discharge of employees.[73] The Board has also found anti-union animus when an employer discharges an employee necessary for its operations. For example, in Town & Country Electric, the Board found anti-union animus when an employer refused to hire a licensed electrician due to the employee’s union activity, even though state regulation required the employer to employ a licensed electrician to continue its operations.[74] Lastly, the Board may consider conduct previously condoned by the employer but is now being punished.[75]
D. Mass Discharge Theory and Its Influence on the Wright Line Analysis
The Mass Discharge theory originates from the idea that general retaliation against employees can be just as effective in discouraging protected conduct as specifically targeting individual employees who engage in union activity.[76] If the General Counsel advances this theory, the mass discharge itself allows the General Counsel to point towards a more “global” discrimination, which the Board must then prove.[77] The traditional analysis under the Wright Line test requires a showing that: (1) the employee had engaged in protected activity, (2) the employer knew about the employee engaging in the protected activity, and (3) the protected activity motivated the employer to discharge the employee.[78]
However, at times, employers may instead act in a globally discriminatory manner which generally takes the form of a mass discharge. With the approval of a few Circuits, the Board may push forward a Mass Discharge theory whenever a global discrimination case arises.[79] When allowed the General Counsel simply needs to show that the employer had engaged in the mass discharge to discourage union activity or retaliate generally against protected activity.[80] This does not relieve the Board from the duty to find discriminatory intent, but rather relieves it from the burden of proving the employer’s knowledge of each employee’s union participation.[81] Thus, a showing that the employer had knowledge of employees’ unionizing as a whole will suffice in satisfying the Board’s burden of proving knowledge.[82] In other words, since the mass discharge is a global act of discrimination, the Board is charged with proving the employer has “global” knowledge of union activity.
The U.S. Court of Appeals for the Sixth Circuit has adopted the Mass Discharge theory on the basis that an employer can discourage the exercise of § 7 rights by taking adverse action against an entire workforce just as effectively as taking actions against only known union supporters.[83] The Sixth Circuit reasoned that a violation would still be found regardless of an employee’s opinion on unionization including negative opinions.[84] This is because the Mass Discharge theory focuses on the “employer’s motive” in discharging the group of employees rather than the individual employee.[85] Thus, the employer’s mass discharge is the unlawful act, not the selection of any particular employee.[86] This reasoning allows the Board to find a violation even if all the employees selected for discharge were not engaged in union activity, so long as the purpose of the discharge is to retaliate or discriminate against union membership. [87] Further, the relief from the mass discharge is not limited to members engaged in unionization efforts, but applies to all unlawful discharge victims.[88]
IV. Instant Decision
In Strategic Technology Institute, the Eighth Circuit denied enforcement of the Board’s order against STI and vacated the Board’s finding that the seventeen employees were fired with anti-union animus.[89] The Eighth Circuit considered the two groups of discharges separately, starting with the three employees discharged on September 27.[90] The court noted that even if the punishment for the CAR violations was more excessive than STI’s regular punishment, it was warranted due to a failure to remedy repeated CAR violations.[91] It further determined that the mere fact that STI knew of union activity at the time of discharge was not enough to support anti-union animus.[92] The court relied on an employer’s right to discharge employees for any reason unrelated to union activity.[93] Mainly, the court relied on the lack of evidence that Boyd knew of any union activity by the three employees, coupled with the fact that none of the three employees participated in union activity.[94] This lack of evidence led the court to determine that there could not have been any anti-union animus in the discharge and any claim that there was would be a matter of suspicion.[95]
The Eighth Circuit then considered the other fourteen employees and concluded that the record did not support the claim that Boyd had anti-union animus when firing those employees.[96] After learning of the potential union activity, the Eighth Circuit found that Boyd had not made any union-based threats or comments on unionization.[97] The Eighth Circuit further discredited the timing of the firings because there was no direct evidence of anti-union animus.[98] In addition, the Eighth Circuit did not find the poor performance justification to be pretextual.[99] The court reasoned that even if the employees’ rankings were all chosen randomly, the rankings still considered legitimate characteristics without mention of union activity.[100] In addition, the court did not find the falsified verbal-counseling forms were enough to “overcome the evidence that the firings were performance-based.”[101] The Eighth Circuit found that the timing of the discharge did not support a finding of anti-union animus because a critical intervening legitimate business purpose for the discharge occurred from the time Boyd learned of union activity until the time of the discharge, that is the September 18 CAR.[102] Ultimately, the Eighth Circuit held that the Board did not meet its burden of proof on the first prong of the Wright Line test because the circumstantial evidence did not support a finding of individualized anti-union animus for each employee discharged.[103]
V. Comment
The Comment is divided into two sections. Section A discusses how the Mass Discharge theory adopts the Wright Line analysis in cases where an employer discharges many employees. Section B applies the Mass Discharge theory within the context of Strategic Technology Institute.
A. The Mass Discharge Theory Should be Adopted by the Courts
To understand the Mass Discharge theory it is important to understand what the Eight Circuit did not say in Strategic Technology Institute. The Eighth Circuit did not say that circumstantial evidence cannot support anti-union animus, but rather that circumstantial evidence requires individualized knowledge between the evidence and the individual employee who was discharged.[104] The Eighth Circuit also did not say that direct evidence of anti-union animus cannot support a § 8(a)(3) violation in a mass discharge case;[105] rather, it found that there must be individual anti-union animus against each employee to find a violation if the Board seeks to rely on circumstantial evidence in supporting an inference of anti-union animus.[106]
The Eighth Circuit’s decision in Strategic Technology Institute, which requires the Board must prove each individual employee’s union association in a case of mass discharge, has destroyed the balance between employers’ and employees’ bargaining rights that Congress sought to create with the NLRA.
The Wright Line analysis offers two official defenses: (1) the employer can show that the General Counsel did not meet its burden of proof and (2) the employer can affirmatively show that the firing, even if partially motivated by anti-union animus, would have occurred even without the protected conduct.[107] Without the Mass Discharge theory, the first defense has become much more potent because, in a general discrimination case, proving individual discrimination for each employee would be impossible under the traditional Wright Line analysis. The lack of the Board’s ability to use the Mass Discharge theory could even incentivize the employer to take adverse action against unsuspecting employees to cover their anti-union animus. Cases involving the discharge of uninvolved employees with unionized employees as a cover are called “collateral damage cases.”[108] Although the situations are different, the Eighth Circuit’s rejection of the Mass Discharge theory extends to these collateral damages cases as many courts have tended to resolve this issue by application of the Mass Discharge theory.[109]
Further, the Mass Discharge theory iteration of the Wright Line test is consistent with the text of § 8(a)(3). The language of § 8(a)(3) makes it an unfair labor practice for an employer to “discriminat[e] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”[110] Section 8(a)(3) can be parceled into three parts: (1) to discriminate, (2) in the hiring or tenure of employment, and (3) for the purpose of discouraging or encouraging union membership.[111] The two substantive parts are the first phrase “[t]o discriminate” and the last part for the purpose of discouraging unionization.[112] To discriminate in the NLRA context has been interpreted as a requirement of anti-union animus, which in the usual Wright Line analysis requires the employee’s discharge to be motivated by the employee’s protected activity.[113] Meanwhile, the second part of § 8(a)(3) requires the facts of a particular case to show only a tendency to discourage employees from engaging in union activities.[114]
The Mass Discharge theory is consistent with all these aspects of the NLRA. First, it still requires the Board to show that there was discrimination.[115] The theory simply alters the requirement from a particularized employee discrimination to a “global” discrimination case.[116] Second, the Board would still need to show that the discharge was for the purpose of discouraging union activity.[117] The Board has long used circumstantial evidence to find the purpose of the discharge, and there is no statutory reason why it could not also do so for a “global” showing of anti-union animus.[118]
B. Applying the Mass Discharge Theory to Strategic Technology Institute
The situation in Strategic Technology Institute is a perfect illustration of the Mass Discharge theory’s importance in the protection of employees from retaliation by their employer as well as the futility of approaching a “global” discrimination case as an individual discrimination case.[119] In Strategic Technology Institute, the employer was able to discharge seventeen employees without worry of whether some or all were leaning towards unionizing.[120] In an ordinary § 8(a)(3) case, if an employer has knowledge of a particular employee’s union activity and discharges that employee because of the union activity, then it would have violated § 8(a)(3).[121] But, if it instead fired five employees while having knowledge that some union activity is occurring, then it can avoid all liability by showing a lack of knowledge of any particular employee’s union activity, even if the Employer intended the discharge to act as a form of “global” discrimination.[122] Strategic Technology Institute is a prime example of how an employer can avoid all liability for anti-union discrimination and destroy the balance between employers and employees.[123]
In Strategic Technology Institute, Boyd had knowledge of some union activity.[124] Yet the firing of the seventeen employees was deemed by the Court not to have any anti-union animus.[125] The Court stated that none of the three employees involved in the CAR incident were involved in the union effort, thus rendering any evidence that the “firings were motivated by anti-union animus[] [a]t most . . . suspicio[us].”[126] Despite such a conclusion, the court failed to consider how the evidence of pretext in this situation was overwhelming.[127] None of the three employees had received any discipline prior to the events leading to their firing; STI had never reacted to a CAR violation by discharging employees; and the discharge occurred only four weeks after learning of the union activity at the Little Rock facility.[128] Despite those critical facts, the three employees faced discipline and termination without recourse due to not having conducted any union activity, while employees in different locations also being cited for CAR violations received only warnings.[129] Without access to a Mass Discharge theory, the unjustness of this result is ripe for recurrence; even if Boyd, or another employer, was intentionally attempting to chill union activity and engaging in discrimination on a global level. The Eighth Circuit’s decision renders these intentions irrelevant simply because of a failure to connect every employee to union activity.
The firing of the fourteen employees shows just how egregious a set of facts can be without any protection from the statute. The Eighth Circuit acknowledged that direct evidence of general union hostility can be a factor in analyzing whether anti-union animus existed.[130] But the court then stated how there was no indication that Boyd had a general distaste for union activity and thus quickly ended the analysis.[131] Outside of showing general hostility toward unions through direct evidence, the Board can show only circumstantial evidence of anti-union animus.[132] The Eighth Circuit discredited the Board’s circumstantial evidence as well.[133] The court went through the individualized Wright Line analysis and discredited the timing of the discharge, randomized rankings STI used for the discharge, and falsified counseling forms to find that there was no anti-union animus.[134] The court further ignored that only two weeks after discharging the fourteen employees, Boyd was forced to rehire two of the employees, and performance on the contract was deteriorating, possibly discrediting the poor performance justification.[135] Together, these facts create a reasonable inference that Boyd was attempting to discourage union activity by threat of discharge. The fatal flaw for the Board was that there was no indication of individualized knowledge of protected activity or individualized intent to discriminate.
The Eighth Circuit claimed that “[e]ven if [the Mass Discharge theory] were applied, it would not affect this case.”[136] Even though the Eighth Circuit made this claim, it wrote off the factors as not showing anti-union animus when analyzing it under an individual discrimination analysis.[137] In other words, it never applied the factors in a global discrimination setting.[138] Had it done so, the outcome would be drastically different. As discussed above, many factors tend to show that Boyd acted with the purpose of discouraging union efforts. The court found it dispositive that Kiihnl’s employee ranking did not mention union activity.[139] Despite this, such a finding should not be determinative as direct evidence of motive is usually self-serving and almost never exists.[140] In fact, the Mass Discharge theory would have changed the court’s result on analyzing whether the rankings could support anti-union animus. Basing the ranking on union activity would show a direct link between each employee’s protected activity and their actual discharge. It would help an individualized Wright Line analysis, but it is unnecessary when the Board needs to show only a general discouragement against unionizing.[141]
Here, the discharge of employees based on randomized ranking tends to lean toward anti-union sentiments and global discrimination. Kiihnl’s considerations when creating the rankings—performance, attendance, and interpersonal skills—were all lawful.[142] However, the factors themselves were not the issue; rather, the problem was that the scorings showed no indication of which employees had poor performance, a determination that seems critical to STI’s “poor performance” justification.[143] The decision to use the arbitrary rankings in the firing decisions exemplifies Boyd’s power over the employees’ livelihoods and could easily intimidate employees by convincing them not to continue unionization efforts.
Further, other factors tend to show global discrimination against the workforce. The Eighth Circuit wrote off the timing of the discharges due to a lack of direct evidence of anti-union animus.[144] But the timing was a critical factor in gleaming Boyd’s intentions when he fired the fourteen employees.[145] The Eighth Circuit emphasized that six weeks had passed since Boyd learned of the union activity and the September 18 CAR, labeling that lapse of time as a “critical intervening event.”[146] The Eighth Circuit’s analysis fails to consider that an employer with anti-union animus may be waiting for a pretextual reason to emerge for the discharge.[147] Thus, the timing of the events, coupled with the “draconic” punishment, tends to show a generalized anti-union behavior meant to discourage employees from engaging in further protected conduct. Also, the “critical intervening event” could easily be understood as pretextual as CARs were being issued in STI’s other plants without similar retaliation.[148]
It is well established that, in an at-will employment scheme, an employer “may discharge an employee for a good reason, a poor reason, or no reason at all” as long as the employer abides by the provisions of the NLRA.[149] However, an extremely poor reason, where the end is not met by the discharge, may be evidence of pretext.[150] Here, that extremely poor reason was Boyd discharging half of the cell team, a specialized group that requires certification to operate.[151] Yet none of the members within the cell team were cited for any CARs and there was no evidence of the members’ poor performance other than Kiihnl’s randomized rankings.[152] In fact, Boyd eventually rehired two of the three members.[153] The lack of a legitimate business reason and deterioration of performance after the mass discharge supports the Board’s correct conclusion that STI’s justification for the discharge was pretextual.[154] None of the cell team were members of the union, which was determinative to the Eight Circuit writing off their discharge. If the Mass Discharge theory were applied, then it would be far less significant that none of the cell team were union members, and the Eighth Circuit would have to agree with the Board that there existed an intent to discriminate on a “global” level against the workforce.
The Eighth Circuit reviews a Board decision to determine whether substantial evidence supports the Board’s conclusion.[155] Had the court adopted the mass discharge standard, there would be no doubt that substantial evidence did support the Board’s findings, contrary to the Eighth Circuit’s dicta.[156] The Board’s mass discharge test required only a showing of actions taken with the purpose of discouraging union activity, without any particularized knowledge of an individual employee’s union activity.[157] The pretextual justification coupled with the timing all lean toward meeting the Board’s obligations under the Wright Line test, and even if particular knowledge did not exist concerning each employees union activity, the Mass Discharge theory would have provided relief to the discharged employees.
VI. Conclusion
The Eighth Circuit missed an opportunity to restore balance between the power of employees and employers in the unionization process. Strategic Technology Institute facts show how egregiously and carelessly an employer may respond to potential unionization without ramifications if the Board can rely on only a strict application of the Wright Line test. While these facts are dramatic, numerous milder cases brought to regional Board offices face dismissal upon initial filing because the General Counsel anticipates an inability to obtain relief under a strict application of the Wright Line test. As it stands now, in Collateral Damage cases and Mass Discharge cases, the Eighth Circuit likely would deny relief to discharged employees when there is a lack of smoking gun evidence. Circuit courts should be more inclined to embrace the Mass Discharge theory to uphold equilibrium between employees and employers, thereby preventing employers from exploiting regular employees to conceal anti-union animus or avoiding liability by engaging in “global” discrimination rather than individualized discrimination.
* B.A., University of South Alabama, 2020; J.D. Candidate, University of Missouri School of Law, 2025; Associate Member, Missouri Law Review, 2023-2024. I am grateful to Professor Rafael Gely for his insight and help and for awakening a love for contracts within me, and I further thank the Missouri Law Review specifically Annaleigh Hobbs, Alaina Valdes, and Meg Morris for their assistance in the editing process. Lastly, I am thankful to Tasneem Huq my biggest supporter, and life partner for all her support throughout law-school.
[1] 29 U.S.C. § 157
[2] NLRB v. Stemun Mfg. Co., 423 F.2d 737, 742 (6th Cir. 1970).
[3] Id.
[4] Strategic Tech. Inst., Inc. and Int’l Ass’n of Machinists and Aerospace Workers, No. 15-CA-249872, 2021 WL 5883358 (N.L.R.B. Div. of Judges Dec. 9, 2021).
[5] Id.
[6] Id.
[7] Strategic Tech. Inst., Inc. v. NLRB, 87 F.4th 900, 905 (8th Cir. 2023).
[8] Id.
[9] Id.
[10] Id. There was also evidence that exit interviews were not the norm at STI. Int’l Ass’n of Machinists, 2021 WL 5883358.
[11] Strategic, 87 F.4th at 905.
[12] Id.
[13] Id.
[14] Int’l. Ass’n of Machinists, 2021 WL 5883358.
[15] Strategic, 87 F.4th at 905. Of the three, one was responsible for the actual leaving of the screwdriver within the engine, another was his “lead,” and the third was using the same toolbox and didn’t notice it missing. Intl. Ass’n of Machinists, 2021 WL 5883358.
[16] Int’l Ass’n of Machinists, 2021 WL 5883358.
[17] Strategic, 87 F.4th at 905.
[18] Id.
[19] Id.
[20] Int’l Ass’n of Machinists, 2021 WL 5883358. Kiihnl testified that the “rankings were done randomly because somebody had to be number 1 and somebody had to be number 41.” Id.
[21] Id.
[22] Id.
[23] Strategic, 87 F.4th at 905.
[24] Int’l Ass’n of Machinists, 2021 WL 5883358.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Strategic Tech. Inst., Inc. v. NLRB, 87 F.4th 900, 907 (8th Cir. 2023).
[36] Int’l Ass’n of Machinists, 2021 WL 5883358.
[37] Strategic, 87 F.4th at 907.
[38] Id.
[39] Int’l Ass’n of Machinists, 2021 WL 5883358; “It shall be an unfair labor practice for an employer,” “to interfere with . . . employees in the exercise of the right[]” to unionize and to “discriminate in regard to . . . tenure of employment” to “discourage membership in any labor organization.” 29 U.S.C. § 158(a)(1), (3).
[40] Strategic, 87 F.4th at 910.
[41] Int’l Ass’n of Machinists, 2021 WL 5883358.
[42] 29 U.S.C. § 151.
[43] Id.
[44] Which States are At-Will Employment States?, Paycor (Sept. 21, 2023), https://www.paycor.com/resource-center/articles/employment-at-will-laws-by-state/. At-will means an employer may discharge its employees “for a good reason, a poor reason, or no reason at all.” Edward G. Budd Mfg. Co. v. NLRB, 138 F.2d 86, 90 (3d Cir. 1943).
[45] Edward, 138 F.2d at 90.
[46] 29 U.S.C. § 158(a).
[47] Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 463 (5th Cir. 2001).
[48] Id.
[49] Id.
[50] Goldtex, Inc. v. NLRB, 14 F.3d 1008, 1011 (4th Cir. 1994).
[51] Mack’s Supermarkets, Inc., 288 NLRB 1082, 1101 (N.L.R.B. 1988).
[52] Edward G. Budd Mfg. Co. v. NLRB, 138 F.2d 86, 90 (3d Cir. 1943).
[53] Jackson & Heller, The Irrelevance of the Wright Line Debate: Returning to the Realism of Erie Resistor in Unfair Labor Practice Cases, 77 Nw. U. L. Rev. 737, 741 (1983).
[54] Id.
[55] Id.
[56] Wright Line, A Div. of Wright Line, Inc., 251 NLRB 1083, 1084 (N.L.R.B. 1980).
[57] Id. at 1085. For example, the First Circuit was the first to split away and created the “dominant motive” test which essentially placed the burden on the General Counsel to show but-for the protected activity the discharge would not have occurred. NLRB v. Fibers International Corp., 439 F.2d 1311, 1312 n.1 (1st Cir. 1971).
[58] Wright Line, 251 NLRB at 1086. See generally NLRB v. Transp. Mgt. Corp., 462 U.S. 393, 404 (1983).
[59] NLRB v. Wright Line, a Div. of Wright Line, Inc., 662 F.2d 899, 901–02 (1st Cir. 1981), abrogated by NLRB v. Transp. Mgt. Corp., 462 U.S. 393 (1983).
[60] 29 U.S.C. § 157 (“Employees shall have the right to self-organization, to form, join, or assist labor organizations”).
[61] Transp. Mgt. Corp., 462 U.S. at 400.
[62] Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1168 (D.C. Cir. 1993).
[63] Wright Line, 662 F.2d at 902.
[64] Transp. Mgt. Corp., 462 U.S. at 400.
[65] Id.
[66] Radio Officers’ Union of Commercial Telegraphers Union, A. F. L. v. NLRB, 347 U.S. 17 (1954); Local 357, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. NLRB, 365 U.S. 667 (1961); In re West Maui Resorts, 340 NLRB 846 (N.L.R.B. 2003); Oshkosh Corp., 2011 WL 1356755 (N.L.R.B. Div. of Judges 2011).
[67] NLRB v. Stemun Mfg. Co., 423 F.2d 737, 742 (6th Cir. 1970); Timberline Energy Corp., 258 NLRB 292, 296 (N.L.R.B. 1981).
[68] A.W.C., Inc., 162 NLRB 1119, 1122 (N.L.R.B. 1967).
[69] Id.
[70] Am. Thread Co. v. NLRB, 631 F.2d 316, 322 (4th Cir.1980).
[71] Savin Bus. Machines Corp., 242 NLRB 435, 438 (N.L.R.B. 1979).
[72] Id.; Timberline, 258 NLRB at 296.
[73] See NLRB v. J. W. Mays, Inc., 356 F.2d 693 (1966).
[74] Town & Country Elec., 309 NLRB 1250 (N.L.R.B. 1992).
[75] Sanitary Laundry & Dry Cleaning Co., 171 NLRB 961, 970 (N.L.R.B. 1968).
[76] Birch Run Welding & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985).
[77] Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993).
[78] Id. at 1168.
[79] Id.; Birch, 761 F.2d at 1180 (the Sixth Circuit explained that general retaliation against an entire workforce can discourage unionization and other protected § 7 activity just as effectively as individual adverse action.); Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); M.S.P. Indus., Inc. v. NLRB, 568 F.2d 166, 176 (10th Cir. 1977); Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603, 606 (2d Cir. 1964).
[80] Davis Supermarkets, 2 F.3d at 1168; Birch, 761 F.2d at 1180; Shattuck, 362 F.2d at 470; M.S.P. Industries, 568 F.2d at 176; Majestic Molded Products, 330 F.2d at 606.
[81] Davis Supermarkets, 2 F.3d at 1169.
[82] Id.
[83] Birch, 761 F.2d at 1180.
[84] Id.
[85] Davis Supermarkets, 2 F.3d at 1169.
[86] Id.
[87] See id.
[88] NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 96–97 (9th Cir. 1970).
[89] Strategic Tech. Inst., Inc. v. NLRB, 87 F.4th 900, 907 (8th Cir. 2023).
[90] Id.
[91] Id.
[92] Id.
[93] Id.
[94] Id.
[95] Id.
[96] Id. at 909.
[97] Id. at 908.
[98] Id. at 909.
[99] Id.
[100] Id.
[101] Id.
[102] Id.
[103] Id.
[104] Id. at 908.
[105] Id. The Eighth Circuit focused on the lack of evidence of union-related outbursts, as well as the fact that there was no direct evidence that the rankings considered union activity. Id. Had there been either of those things, the record would support direct evidence of anti-union animus, and the board may have accepted that STI acted unlawfully. See Ballou Brick Co. v. NLRB, 798 F.2d 339, 342 (8th Cir. 1986).
[106] Strategic, 87 F.4th at 909.
[107] See Wright Line, A Div. of Wright Line, Inc., 251 NLRB 1083, 1085 (N.L.R.B. 1980).
[108] Joshua D. Rosenberg Daneri & Paul A. Thomas, Wrong Line: Proposing A New Test for Discrimination Under the National Labor Relations Act, 56 U. Mich. J. L. Reform 1, 43 (2022).
[109] See, e.g., Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1105 (D.C. Cir. 2019); Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 256 (4th Cir. 1997).
[110] 29 U.S.C. § 158(a)(3).
[111] Id.
[112] Id.
[113] Wright Line, A Div. of Wright Line, Inc., 251 NLRB 1083, 1089 (N.L.R.B. 1980).
[114] Rosenberg Daneri & Thomas, supra note 108, at 62.
[115] Birch Run Welding & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985).
[116] Id.
[117] Id.
[118] Radio Officers’ Union of Commercial Telegraphers Union, A. F. L. v. NLRB, 347 U.S. 17 (1954); Local 357, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. NLRB, 365 U.S. 667 (1961); In re West Maui Resorts, 340 NLRB 846 (N.L.R.B. 2003); Oshkosh Corp., 2011 WL 1356755 (N.L.R.B. Div. of Judges 2011).
[119] See, e.g., Strategic Tech. Inst., Inc. v. NLRB, 87 F.4th 900 (8th Cir. 2023).
[120] Id. at 905.
[121] Wright Line, A Div. of Wright Line, Inc., 251 NLRB 1083, 1085 (N.L.R.B. 1980).
[122] Id.
[123] Strategic Tech. Inst., Inc. v. NLRB, 87 F.4th 900, 909 (8th Cir. 2023).
[124] Id. at 905.
[125] Id.
[126] Id.
[127] Id.
[128] Strategic Tech. Inst., Inc. and Int’l Ass’n of Machinists and Aerospace Workers, No. 15-CA-249872, 2021 WL 5883358 (N.L.R.B. Div. of Judges Dec. 9, 2021).
[129] Id.
[130] Strategic, 87 F.4th at 905.
[131] Id.
[132] Id.
[133] Id.
[134] Id.
[135] Strategic Tech. Inst., Inc. and Int’l Ass’n of Machinists and Aerospace Workers, No. 15-CA-249872, 2021 WL 5883358 (N.L.R.B. Div. of Judges Dec. 9, 2021).
[136] Strategic, 87 F.4th at 910.
[137] Id. at 909.
[138]Id.
[139] Id.
[140] Kava Holdings, LLC v. NLRB, 85 F.4th 479, 487 (9th Cir. 2023).
[141] Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993); Birch Run Welding & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985).
[142] Strategic, 87 F.4th at 909.
[143] Id.
[144] Id.
[145] Id.
[146] Id.
[147] Am. Thread Co. v. NLRB, 631 F.2d 316, 322 (4th Cir. 1980).
[148] Strategic Tech. Inst., Inc. and Int’l Ass’n of Machinists and Aerospace Workers, No. 15-CA-249872, 2021 WL 5883358 (N.L.R.B. Div. of Judges Dec. 9, 2021).
[149] Edward G. Budd Mfg. Co. v. NLRB, 138 F.2d 86, 90 (3d Cir. 1943).
[150] Town & Country Elec., 309 NLRB 1250 (N.L.R.B. 1992).
[151] Intl. Ass’n of Machinists, 2021 WL 5883358.
[152] Id.
[153] Id.
[154] Id.
[155] See supra Section III.E.
[156] Strategic Tech. Inst., Inc. v. NLRB, 87 F.4th 900, 909 (8th Cir. 2023).
[157] See supra Section III.D.