Wrongful Termination Claims And NLRB's Burden Of Proof

By Douglas Darch and Jenna Neumann (August 17, 2018, 11:40 AM EDT) -- A recent decision by the National Labor Relations Board left experienced labor practitioners scratching their heads. In Tschiggfrie Properties Ltd. v. NLRB, a three-member panel of the Eighth Circuit did more.[1] The panel vacated the NLRB's decision in a case involving an employee who was fired for abusing his employer's Wi-Fi and for sleeping on the job. (The same employee also initiated the process of unionizing the workforce and served as an observer for the union election.) Before the appellate court, the NLRB unsuccessfully argued that a showing of a nexus, or a link between the employee's protected activity and the adverse employment action, was not required to satisfy the employee's initial burden in a wrongful termination case. The Eighth Circuit found that the NLRB misapplied the burden of proof, vacated the NLRB's order and remanded the case with instructions to reconsider whether the general counsel could make the appropriate showing....

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