David E. Brooks v. National Labor Relations Board, and Bayliner Marine Corporation, Intervenor

Petitioner seeks review of a portion of the Board’s order, reported at 215 NLRB 11 , which concluded that his discharge from employment was not motivated by anti-union animus and consequently did not violate §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158 . The Board in reversing the administrative law judge’s determination that a violation had occurred found that there was insufficient evidence to support the conclusion that at the time of the discharge the employer was aware of petitioner’s union activity.

Petitioner asserts that the Board’s order was erroneous because it improperly rejected the judge’s credibility determinations. The judge, generally resolving credibility determinations in favor of petitioner, had concluded that the post-discharge rationales for its action offered by the employer were pretextual.

The Board did not disagree. Rather, it focused on the lack of evidence at the hearing to indicate that the employer was aware of petitioner’s union activity. In the absence of such an awareness, the discharge could not have violated the Act. NLRB v. Klaue, 523 F.2d 410, 413 (9th Cir. 1975). Thus, the credibility determinations of the…