Bally's Park Place, Inc. v. National Labor Relations Board
396 U.S. App. D.C. 205
| D.C. Cir. | 2011Background
- Bally's Park Place, Inc. operates a casino in Atlantic City and employed Justiniano as a table dealer since 2000.
- Justiniano supported the UAW organizing drive and attended union meetings, signing an authorization card and promoting union activity at work.
- Bally's managers told him multiple times on the casino floor not to discuss the union, including a statement he could be fired for union talk.
- Justiniano attended an UAW rally on March 31, and Bally's management later learned of this impact on his FMLA leave timing.
- Bally's terminated Justiniano on April 12 for allegedly abusing FMLA leave by using 20 minutes to attend the rally; the NLRB charged unfair labor practices under NLRA §8(a)(1) and (3).
- The ALJ found 8(a)(1) violations for floor-talk restrictions and grievance solicitation but dismissed the discharge claim; the Board affirmed the 8(a)(1) violations and found the discharge to be discriminatory, enforcing the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discharge violates NLRA when motive shown is discriminatory | Justiniano's union activity shows discriminatory motive | Bally's would have discharged for FMLA misuse regardless of union activity | Discharge unlawful; Board's discriminatory-motive finding sustained |
| Whether floor-talk prohibition violated 8(a)(1) | Union discussion on floor was allowed while other nonwork talk was permitted | Policy against discussing union was supervisory control over employee conduct | 8(a)(1) violation established; Board affirmed |
| Whether Bally's zero-tolerance FMLA policy existed and was properly applied | No formal policy; absence of written policy weakens ban | Unwritten standard could support discharge under Rule 3 | Discharge supported by lack of written policy; pretext shown by other design features |
| Whether Bally's nonwritten policy and conduct evidence negate the discharge | Evidence insufficient to show policy necessary for discharge | Nine prior misuses show policy of terminating for FMLA abuse | Policy evidence insufficient to prove a non-pretextual zero-tolerance policy; discharge still unlawful under Wright Line |
Key Cases Cited
- Wright Line, 251 N.L.R.B. 1083, 251 N.L.R.2d 1083 (1980) (establishes Wright Line burden-shifting framework for protected conduct cases)
- ITT Indus., 331 N.L.R.B. 4, 331 N.L.R.B. 4 (2000) (initial conduct-based standards in NLRA cases)
- Masland Indus., 311 N.L.R.B. 184, 311 N.L.R.B. 184 (1993) (evidence of timing and motive in disciplinary actions)
- Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24 (D.C. Cir. 1998) (employer motive and pretext considerations in discrimination cases under Wright Line)
- Traction Wholesale Ctr. Co., 328 N.L.R.B. 1058, 328 N.L.R.B. 1058 (1999) (relevant factors for evaluating discriminatory motive in discipline)