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Is This Retaliation for Participating in a Union Strike?


It may seem unfathomable that an employer would fabricate a reason to terminate an employee. However, there are clients who experience situations that appear, at the very least, to be concocted reasons for firing them. The scenario discussed in this blog may actually seem like entrapment. The real question is whether the employee’s ultimate termination was really retaliation for her participation in union activities. If it was, then it will likely be unlawful.

A Mistake in Recording Time

Consider this scenario. An employee was told by her supervisor that the time clock failed to register the hours she punched in for three days. She was asked to write in the time she worked for those three days. A week later, she discovered that the times she entered by hand were inaccurate in that she came in later than she wrote down. Once the employee discovered this error, she immediately reported it to her manager. Nevertheless, she was suspended two days later for falsifying her time based on the security camera showing her coming in later than she reported, and ultimately terminated.

Employee Files Grievance

It is not surprising that the employee challenged her suspension and filed a grievance with her employer since she was asked to fill in her time manually because of a malfunction with the time clock and, after discovering her mistake, she immediately notified her manager. Those facts certainly do not support a claim that she knowingly falsified her time. Another important fact is that the employee, a member of the union, was one of five union employees who were terminated for various reasons a month after the union went on strike.

Discrimination and Retaliation Based on Union Activities

The National Labor Relations Act (NLRA), enacted in 1935, was enacted for the protection of employees and employers, to encourage collective bargaining, and to restrict certain private sector labor and management practices which may harm the general welfare of workers, businesses and the economy.

Section 8(a)(3) of the NLRA makes it unlawful to discourage or encourage union activities or sympathies "by discrimination in regard to hire or tenure of employment or any term or condition of employment." This includes the discharge, lay off, or discipline of employees, or refusing to hire job applicants because they are “pro-union.”

The Suspension and Termination May Constitute Retaliation for Union Activity

Relevant to this scenario, it is likewise unlawful to discharge, constructively discharge, suspend, lockout, lay off, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because they engage in union activities. That includes employees who participate in a union strike. As such, the employee in this scenario may very well have a claim for retaliation under the NLRA if it can be shown that her suspension and subsequent termination for allegedly falsifying time was merely a pretext for discrimination and retaliation base on union activity.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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