Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 63dude, by reasonable implication, proceedings within the ambit ofthe National Labor Relations Act." The Board relied on Parker-Robb Chevrolet, 21 a case that issued subsequent to the judge's decision,which preserved existing case law's special circumstanceswherein the discharge of a supervisor may violate the Act. Theapplicable circumstance here involved Kress' intent to give testimonyadverse to the employer's interest at a Board proceedingand, as the Board explained in Parker-Robb, there is a need "toensure that even statutorily excluded individuals may not be. . .discouraged from participating in Board processes.22The Board acknowledged that Kress' demonstrated inabilityproperly to supervise his employees could, standing alone, justifyKress' discharge. It expressly held that, because Kress' dischargewas found to have been motivated in part by a reason that is \unlawfulunder the foregoing exception to the Parker-Robb Chevroletrule, "it was incumbent on the Respondent to establish by apreponderance of the evidence that it would have fired Kresseven if he had not threatened to testify on Zuber's behalf 'incourt,' citing Wright Line. 23 The Board continued:We think that the Respondent failed to meet that burden. . . .Although the. judge found that the lawful reason was "primary,"still in light of Wright Line the Respondent could notprevail without an additional showing that that reason alonewould have prompted Kress' discharge.5. Right of Nonemployee Organizers to SolicitIn SCNO Barge Lines, 24 a panel majority held that the respondent'sproperty rights and the union's Section 7 rights wereboth very strong and stood on relatively equal footing with respectto towboats and barges along the Illinois, Mississippi, Missouri,and Ohio Rivers. Accordingly, it was necessary to considerwhether the General Counsel showed that the union could notreasonably have communicated its message during an organizingcampaign except by boarding the respondent's boats. The panelmajority concluded that the General Counsel had failed to do so.The majority noted that, although the crewmen lived andworked on SCNO's premises, they did so for only 30 days at atime, and then had 30 days' leave, during which they usuallywent home. This fact was of great importance because the respondenthad provided the union with the crewmen's names andhome addresses. This presented an opportunity for the union to21 262 NLRB 402, 404 (1982).22 The Board noted that the protection of a supervisor from retaliation for giving testimony m aBoard proceeding for an employee who is found not to have a viable claim under the Act is not anomalousbecause the effect of the supervisor's discharge "is to tend to dry up legitimate sources of informationto Board agents, to impair the functioning of the machinery provided for the vindication of theemployees' rights and, probably, to restrain employees in the exercise of their protected rights."NLRB v. Electro Motive Mfg. Co., 389 F.2d 61, 62 (4th Cir. 1968).22 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).24 287 NLRB No. 29 (Members Babson and Stephens; Member Johansen dissenting).