Where an employee is disciplined for misconduct purportedly unrelated to protected union activity, the employee must show that there was an improper motivation for the discipline and that the employer would not have taken the same action without the improper motivation. A hospital employee was suspended and ultimately fired for alleged misconduct connected with her efforts to promote the certification of a new union in the hospital’s cafeteria. The Wright Line test applies to discipline that is purportedly unrelated to a protected activity, while the Burnup test applies to discipline that occurs in the course of a protected activity. The D.C. Circuit Court of Appeals held that the lower court misapplied the Wright Line test by determining whether or not the employee had engaged in misconduct rather than that the employer had improper motivations for the disciplinary action.
See Sutter E. Bay Hosps. v. NLRB, 687 F.3d 424 (D.C. Cir. 2012); see e.g., Shamrock Foods Co. v. NLRB, 346 F.3d 1130,1135 (D.C. Cir. 2003); see also 12 Emp. Coord. Labor Relations § 52:44; 10 Emp. Coord. Labor Relations § 26:188; NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981); NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964).
(Development authored by Allison Pearson)