Southern Bakeries, LLC v. NLRB, No. 18-2370 (8th Cir. 2019)
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Southern Bakeries appealed the Board's determination that it violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) by relying on a prior unlawful discipline in disciplining and terminating an employee (Briggs) and designating her "not for hire," and by violating Section 8(a)(1) by directing a second employee (Muldew) not to discuss her discipline with other employees and then telling her she was being discharged in part for doing so.
The Eighth Circuit held that the Board erred in concluding that the prior final written warning, standing alone, satisfied the General Counsel's burden to prove a prima facie case of discriminatory discipline. Therefore, the court granted Southern Bakeries' petition for review in part. The court also held that the ALJ's credibility findings were based on careful review of the testimony, supported by the Muldew discharge document. Furthermore, the findings were far from conscience-shocking, and no extraordinary circumstance warrants reversing the Board's order to cease and desist from telling employees not to discuss their discipline with other employees, or that they are being disciplined for doing so. Accordingly, the court denied in part Southern Bakeries' petition for review and enforced in part the Board's order.
Court Description: Loken, Author, with Wollman and Stras, Circuit Judges] Petition for Review - National Labor Relations Board. General Counsel failed to present evidence of the nexus between an employee's severe discipline and discharge and her protected union activity years earlier which was necessary to establish a prima facie case that the employer violated Section 8(a)(1) and (3) of the Act; the Board erred in concluding that the prior final written warning, standing alone, satisfied the General Counsel's burden to prove a prima facie case of discriminatory discipline; with respect to a second employee's discipline, the Board's findings are far from conscience-shocking and no extraordinary circumstances warrants reversing the Board's order telling the employer to cease and desist from telling employees not to discuss their discipline with other employees, or that they they are being disciplined for doing so, and that portion of the Board's order is enforced.
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