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NLRB Finds That Employee Was Wrongfully Terminated After Management Interrogated Him About Union Affiliation

On January 16, 2014, a National Labor Relations Board panel issued an Order affirming and strengthening the Decision of Administrative Law Judge Joel P. Biblowitz in the case of K-Air Corporation and Sheet Metal Workers Local #67. Judge Biblowitz had found that Kyle Villarreal, owner and President of K-Air Corporation, unlawfully interrogated employee John Vega about his past union membership and then terminated him because of it. Expanding on the Judge’s ruling, the NLRB panel added that Respondent Villarreal also unlawfully threatened employees who were union members or whom he had overheard discussing unions when he told them that he “had no interest in having” and “did not want” union employees.

“Credibility,” the NLRB panel writes, “obviously plays an important part in this case.” The panel noted Villarreal’s general animus toward union activity, Vega’s relative forthrightness in his testimony, the suspicious timing of his termination 1 day after Villarreal learned of his former union affiliation, and “Villarreal’s shifting rationales for firing Vega–initially, that he could not afford to retain Vega (even as he hired two new employees the day after Vega’s discharge), and later that Vega was incompetent.” (Villarreal’s charge of incompetence was based on a repair The Court and panel concluded that but for Villarreal’s discoveries about Vega’s past union affiliation, “there was no other credible testimony to establish that Vega would have been discharged absent his protected conduct,” and that K-Air therefore “violated Section 8(a)(1)(3) of the (National Labor Relations) Act by discharging him…”

As often happens in cases like this one, Villarreal argued that Vega was not protected by the NLRA because he was not his employee but an independent contractor. The panel pointed to several reasons for its rejection of this claim: there had been no discussion at the time of Vega’s hiring about his being hired as an independent contractor, there was no contract or agreement stating this, discussion of his training for the job and his starting wage implied that he was starting as an employee, Vega did not operate his own business or carry his own insurance, and he filled out tax documents and time sheets like a regular employee. The panel concluded that the Respondent Villarreal had “presented no evidence that Vega was an independent contractor.”

In the end, the NLRB panel ordered Respondent Villarreal to offer Mr. Vega reinstatement to his position without prejudice , to make him whole for any loss of earnings and other benefits as a result of the discrimination against him, to cease and desist from activities such as “interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed them by Section 7 of the Act,” and to post a notice to his employees informing them of the outcome of this case as well as their rights under the NLRA to form, join, or assist a union without being discharged or otherwise discriminated against.

If you are an employee and you believe your rights have been violated or if you believe you have a claim under the NLRA, please contact The Harman Firm, LLP.

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