The Democratic Party (14-CA-270610)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

DATE:

August 19, 2021

TO:

William B. Cowen, Acting Regional Director

Region 14

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: The Missouri Democratic Party

Case 14-CA-270610

240-0150-0000-0000

260-6735-0000-0000

524-6710-0100-0000

524-6740-5000-0000

The Region submitted this case for advice as to whether the Board should assert

jurisdiction over a political party, The Missouri Democratic Party (“MDP” or “the

Employer”), and if so, whether the Employer violated Section 8(a)(1) and (3) by

suspending and later discharging the Charging Party in retaliation for

Union

activity. We conclude the Missouri Democratic Party is an employer under the Act,

and that its suspension and discharge of the Charging Party violated Section 8(a)(1)

and (3) because the evidence demonstrates that the Employer acted with an unlawful

motive.

FACTS

The MDP is the affiliate of the Democratic Party in the state of Missouri and is

registered as a non-profit political party. During non-election years, the MDP employs

a few individuals in managerial positions, such as the Executive Director who is

responsible for the maintenance of the MDP headquarters. In addition to the

Executive Director, the MDP’s “Board of Officers” is made up of a Chair, Vice Chair,

Secretary, and a Treasurer, all of whom are elected by the members of the State

Committee. The MDP regularly spends over a million dollars annually on out of state

goods and services, in addition to raising annual revenues of around six million

dollars, mostly from political contributions. On both its official website and Facebook

page, the Employer advocates for Democratic candidates running for the United

States Senate and House of Representatives, in addition to state elections

. The MDP regularly spends over a million dollars annually on out of state

goods and services, in addition to raising annual revenues of around six million

dollars, mostly from political contributions. On both its official website and Facebook

page, the Employer advocates for Democratic candidates running for the United

States Senate and House of Representatives, in addition to state elections.

Once the “run-up” to an election year begins, the MDP increases its staffing and

most recently, in 2020, it employed around twenty employees in non-supervisory

roles. Employees must sign a handbook acknowledging their receipt of the Employer’s

(b) (6), (b)

Case 14-CA-270610

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sent to what the Employer calls its “decision making group,” which was made up by

the Executive Director, three members of the Board of Officers (Treasurer, Acting

Party Chair, and one inactive Party Chair identified as an Officer), the Managing

Communications Director, and the Managing Political Director. Together, this group

decided to terminate the Charging Party. Two days later, the Charging Party was

notified of

termination via email. This notice mirrored the suspension letter in

citing to the complaint received by Tyler Merkel’s campaign and violations of the

neutrality and outside employment handbook policies.

ACTION

We conclude that the MDP is an employer under the Act. We also conclude that

the Employer’s suspension and termination of the Charging Party violated Section

8(a)(1) and (3).

I.

It is proper for the Board to assert jurisdiction over the Employer.

First, we note that the Supreme Court has “consistently declared that in passing

the National Labor Relations Act, Congress intended to and did vest in the Board the

fullest jurisdictional breadth constitutionally permissible under the Commerce

Clause.”5 Throughout the life of the Act, neither Congress nor the Board have

excluded political parties from the Board’s jurisdiction

e Employer.

First, we note that the Supreme Court has “consistently declared that in passing

the National Labor Relations Act, Congress intended to and did vest in the Board the

fullest jurisdictional breadth constitutionally permissible under the Commerce

Clause.”5 Throughout the life of the Act, neither Congress nor the Board have

excluded political parties from the Board’s jurisdiction. However, the Employer

argues that asserting jurisdiction over a political party would lead to unnecessary

involvement in political decisions that are “essential to [their] First Amendment

expressive interests.” In addition to this constitutional consideration, the Employer

argues that it should not be subject to the Board’s jurisdiction because its activities

are political and not economic in nature and therefore it does not impact interstate

commerce. For reasons we will discuss below, these arguments are unpersuasive.

A. The Employer’s economic activity has a clear impact on interstate commerce.

We reject the Employer’s argument that because the nature of its activities are

political rather than commercial in nature, and because its activities are focused

exclusively in the state of Missouri, it does not have an impact on interstate

commerce.

When the Board declined to assert jurisdiction over the nonprofit employer in

Ohio Public Interest Campaign, it noted the nature of the respondent’s activity was

not a basis for its decision.6 Instead, the Board reiterated that the only basis for

5 NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963).

6 284 NLRB 281, 281 (1987); see also Kansas AFL-CIO, 341 NLRB 1015, 1017–18

(2004) (exercising jurisdiction over the Kansas AFL-CIO despite its status as a

lic Interest Campaign, it noted the nature of the respondent’s activity was

not a basis for its decision.6 Instead, the Board reiterated that the only basis for

5 NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963).

6 284 NLRB 281, 281 (1987); see also Kansas AFL-CIO, 341 NLRB 1015, 1017–18

(2004) (exercising jurisdiction over the Kansas AFL-CIO despite its status as a

(b) (6), (b)

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declining jurisdiction over a nonprofit organization would be if “its activities do not

have a sufficient impact on interstate commerce to warrant the exercise of the Board’s

jurisdiction.”7 In applying this standard, the Board found the operations of the

respondent were almost exclusively limited to matters impacting Ohio residents and

did not have a general impact on interstate commerce.

In Siemons Mailing Service, the Board announced it would assert jurisdiction

over any nonretail employer with a total interstate inflow and outflow of goods and

services that equaled or exceeded $50,000.8 Although the employer in Ohio Public

Interest Campaign deriving a gross revenue in excess of one million dollars, it only

received goods and services from outside the state of about $36,000.9 Due to this, in

addition to the fact that the employer’s political concerns were entirely state-focused,

the Board found that the employer had “not been shown to have such an impact on

commerce as to warrant our assertion of jurisdiction in this particular case.”10 Later

in 1987, the Board established a new jurisdictional standard of $250,000 in annual

revenues “for all social service organizations other than those for which there exists a

standard specifically applicable to the type of activity in which they are engaged.”11

Here, despite the Employer’s claims, its operations clearly have a substantial

impact on interstate commerce

rticular case.”10 Later

in 1987, the Board established a new jurisdictional standard of $250,000 in annual

revenues “for all social service organizations other than those for which there exists a

standard specifically applicable to the type of activity in which they are engaged.”11

Here, despite the Employer’s claims, its operations clearly have a substantial

impact on interstate commerce. It raises millions of dollars per year in political

contributions and spends over one million dollars annually on out of state goods and

services. Under either the normal nonretail standard of $50,000 of out-of-state inflow

and outflow, or the “social services” standard of $250,000 annual revenue, the

Employer has more than a sufficient impact on interstate commerce for the Board to

assert jurisdiction. Unlike the respondent in Ohio Public Interest Campaign, the

Employer’s involvement in interstate commerce is substantial. Further, the

Employer’s website and Facebook pages reflect its advocacy for Democratic candidates

nonprofit political and lobbying organization); Ohio State Legal Services Assn., 239

NLRB 594 (1978) (asserting jurisdiction over an organization that, among other

things, engaged in lobbying).

7 Ohio Public Interest Campaign, 284 NLRB at 281 (quoting St. Aloysius Home, 224

NLRB 1344, 1345 (1976)).

8 122 NLRB 81 (1958).

9 Ohio Public Interest Campaign, 284 NLRB at 281-82.

10 Id.

11 Hispanic Federation for Social & Economic Development, 284 NLRB 500, 501

ces Assn., 239

NLRB 594 (1978) (asserting jurisdiction over an organization that, among other

things, engaged in lobbying).

7 Ohio Public Interest Campaign, 284 NLRB at 281 (quoting St. Aloysius Home, 224

NLRB 1344, 1345 (1976)).

8 122 NLRB 81 (1958).

9 Ohio Public Interest Campaign, 284 NLRB at 281-82.

10 Id.

11 Hispanic Federation for Social & Economic Development, 284 NLRB 500, 501

(1987).

Case 14-CA-270610

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running for the US Senate and US House of Representatives, elections that have

nationwide impacts.

B. Enforcing the Act will not interfere with a political party’s First Amendment

rights.

The Employer argues that asserting jurisdiction over a political party presents

difficult constitutional questions, and that doing so here specifically would require an

inquiry into MDP’s political decisions that are essential to its First Amendment

expressive interests. We disagree and find that enforcing the Act does not require an

inquiry into the Employer’s protected political speech.

The First Amendment does not prevent the Board from asserting jurisdiction

over political organizations. In Kansas AFL-CIO, the Board directly considered an

employer’s argument that the First Amendment precluded the Board from exercising

jurisdiction over a lobbying/political action organization.12 There, the Board affirmed

the ALJ’s decision that NLRB v. Catholic Bishop of Chicago13 did not apply to

political organizations.14

In Catholic Bishop, the Supreme Court noted that in the absence of a clear

expression of congressional intent, the Court would interpret the National Labor

Relations Act so as to avoid any serious constitutional questions.15 The Court there

determined that the Board’s assertion of jurisdiction over religious teachers would

create just such serious and unavoidable conflicts between the Act and the Religious

Clauses of the First Amendment.16 Among other things, the Court noted that

churches would assert that certain employment practices were mandated by thei

Act so as to avoid any serious constitutional questions.15 The Court there

determined that the Board’s assertion of jurisdiction over religious teachers would

create just such serious and unavoidable conflicts between the Act and the Religious

Clauses of the First Amendment.16 Among other things, the Court noted that

churches would assert that certain employment practices were mandated by their

religion, necessitating the Board’s making a determination of whether the clergy were

acting in good faith. Finding no clear congressional intent in either the law or the

legislative history that the Act should cover teachers at religious schools, the Court

determined that to avoid the serious constitutional issues, the Act should be

interpreted as not extending to religious schools.

12 341 NLRB at 1017–18.

13 440 U.S. 490 (1979).

14 We note that the discussion of the First Amendment and Catholic Bishop in this

memo does not suggest the General Counsel’s approval of Bethany College, 369 NLRB

No. 98 (2020). Rather, the General Counsel is interested in revisiting the Board’s

decision in Bethany College in a future, appropriate case.

15 Catholic Bishop, 440 U.S. at 500–01.

16 Id. at 503–04.

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The Catholic Bishop analysis has not been applied outside the religious school

context, i.e., to other kinds of potential conflicts between the assertion of Board

jurisdiction and the First Amendment. For example, in Associated Press v

e Board’s

decision in Bethany College in a future, appropriate case.

15 Catholic Bishop, 440 U.S. at 500–01.

16 Id. at 503–04.

Case 14-CA-270610

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The Catholic Bishop analysis has not been applied outside the religious school

context, i.e., to other kinds of potential conflicts between the assertion of Board

jurisdiction and the First Amendment. For example, in Associated Press v. NLRB, the

Supreme Court found that the Board’s assertion of jurisdiction over a newsgathering

service did not infringe upon First Amendment guarantees of freedom of the press.17

In Kansas AFL-CIO, the Board similarly found that, just because an organization

engages in First Amendment political activity, the Board’s assertion of jurisdiction

over that organization would not infringe upon the First Amendment’s protection of

political speech or association.18 That’s because the assertion of Board jurisdiction

will not infringe on an employer’s control over its First Amendment protected speech,

which is absolute and unaffected by its duties under the Act.19 While there may be

organizational differences between a political action nonprofit like the Kansas AFL-

CIO and a political party, there is little difference in the kind of speech undertaken by

lobbyists and newspaper editorialists and the kind of speech undertaken by political

party employees. Accordingly, we find that the First Amendment does not bar the

assertion of jurisdiction over the Employer just because it is a political party.20

C. The Board should not exercise its discretion to decline jurisdiction.

Finally, we conclude the Board should not decline to assert jurisdiction over the

Employer

editorialists and the kind of speech undertaken by political

party employees. Accordingly, we find that the First Amendment does not bar the

assertion of jurisdiction over the Employer just because it is a political party.20

C. The Board should not exercise its discretion to decline jurisdiction.

Finally, we conclude the Board should not decline to assert jurisdiction over the

Employer. Section 14(c)(1) of the Act empowers the Board, by decision or rule making,

to exercise discretion to decline jurisdiction where it determines that the effect of a

labor dispute on commerce is “not sufficiently substantial to warrant the exercise of

its jurisdiction.”21 Early in its history, the Board regularly declined to exercise

17 301 U.S. 103 (1937).

18 341 NLRB at 1017–18.

19 Cf. Ampersand Publ’g, LLC v. NLRB, 702 F.3d 51, 56 (D.C. Cir. 2012) (holding inter

alia that what is published and not published are not “legitimate employee concerns”

for purposes of Section 7 protection) (quoting Passaic Daily News v. NLRB, 736 F.2d

1543, 1557–58 (D.C. Cir. 1984)).

20 We take no position on whether it is proper for the Board to assert jurisdiction over

an individual candidate’s campaign, therefore we will not address the 2019 cases

Bernie 2020, Inc., Case 25-CA-245250, Advice Closing Email dated Oct. 25, 2019, and

Warren for President, Inc., Case 01-CA-2465231, Advice Closing Email dated Oct. 25,

2019.

21 29 U.S.C. § 164(c)(1). See also Hirsch v. McCulloch, 303 F.2d 208, 212 (D.C. Cir.

1962) (holding that the Board could not, on basis of advisory opinions, decline

ore we will not address the 2019 cases

Bernie 2020, Inc., Case 25-CA-245250, Advice Closing Email dated Oct. 25, 2019, and

Warren for President, Inc., Case 01-CA-2465231, Advice Closing Email dated Oct. 25,

2019.

21 29 U.S.C. § 164(c)(1). See also Hirsch v. McCulloch, 303 F.2d 208, 212 (D.C. Cir.

1962) (holding that the Board could not, on basis of advisory opinions, decline

Case 14-CA-270610

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jurisdiction over certain classes and categories of employers, including nonprofits,

charities, small intrastate firms, hotels, and hospitals.22 The Board generally relied

on findings that an employer was small, local, and did not significantly affect

commerce,23 or that a state or foreign entity exerted significant control or regulation

over an employer.24

Almost all of the Board’s historical declinations have been either reversed by the

Board25 or significantly narrowed.26 The Board no longer generally declines

jurisdiction over a labor dispute involving a class of employers without first

promulgating a rule or holding a hearing to establish a rule of decision).

22 Cf. Hirsch v. McCulloch, 303 F.2d at 212–14 (listing declinations of jurisdiction).

23 See, e.g., Evans & Kunz, Ltd., 194 NLRB 1216, 1216 (1972) (declining to assert

jurisdiction over a law firm composed of four to six attorneys where the firm confined

most of its activities to the practice of law solely within Arizona).

24 See Horseracing & Dogracing Industries, Declination of Assertion of Jurisdiction,

38 Fed. Reg. 9537 (Apr

t 212–14 (listing declinations of jurisdiction).

23 See, e.g., Evans & Kunz, Ltd., 194 NLRB 1216, 1216 (1972) (declining to assert

jurisdiction over a law firm composed of four to six attorneys where the firm confined

most of its activities to the practice of law solely within Arizona).

24 See Horseracing & Dogracing Industries, Declination of Assertion of Jurisdiction,

38 Fed. Reg. 9537 (Apr. 17, 1973) (codified at 29 CFR 103.3) (declining Board

jurisdiction over horseracing and dogracing industries, in part, because state laws set

tracks’ racing dates and determined percentage share of the gross wagers that went to

the state; the states licensed employees and retained the right to effect the discharge

of employees whose conduct jeopardized the integrity of the industry; a “unique and

special relationship” existed between the states and these industries because the

industries constituted a substantial source of state revenue; and the sporadic nature

of employment and lack of evidence of regular labor disputes suggested that these

industries had insufficient impact on commerce to warrant the exercise of the Board’s

jurisdiction).

25 See, e.g., St. Aloysius Home, 224 NLRB 1344, 1345 (1976) (“the only basis for

declining jurisdiction over a charitable organization is a finding that its activities do

not have a sufficient impact on interstate commerce to warrant the exercise of the

Board's jurisdiction”); Lighthouse for the Blind of Houston, 244 NLRB 1144, 1145

(1979) (Board will no longer distinguish between profit and nonprofit organizations

for jurisdictional purposes); Foley, Hoag & Eliot, 229 NLRB 456, 456–57 (1977)

(overruling Board’s previous determination that it should decline to exercise

jurisdiction over certain law firms); Kansas AFL-CIO, 341 NLRB 1015, 1018–19

rd's jurisdiction”); Lighthouse for the Blind of Houston, 244 NLRB 1144, 1145

(1979) (Board will no longer distinguish between profit and nonprofit organizations

for jurisdictional purposes); Foley, Hoag & Eliot, 229 NLRB 456, 456–57 (1977)

(overruling Board’s previous determination that it should decline to exercise

jurisdiction over certain law firms); Kansas AFL-CIO, 341 NLRB 1015, 1018–19

(2004) (adopting ALJ decision rejecting respondent’s argument that because it was

engaged primarily in state lobbying activities the Board should decline jurisdiction).

26 See, e.g., Delaware Park, 325 NLRB 156, 156 (1997) (finding that workers involved

with a slot machine operation at a racetrack were not in the horseracing industry);

Empire City at Yonkers Raceway, 355 NLRB 225, 227 (2010) (holding that combined

Case 14-CA-270610

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jurisdiction where a state or foreign entity exerts significant control.27 Thus, we

conclude that it is within the Board’s authority to assert jurisdiction over the

Employer, and the Board should not decline to assert jurisdiction.

II.

The Employer’s suspension and termination of the Charging Party

violates Section 8(a)(1) and (3) of the Act.

To meet her initial Wright Line burden, the General Counsel must show the

employee engaged in protected concerted activity, that the employer knew about this

activity, and that the adverse action taken against the employee was motivated by

animus towards the employee’s protected activity.28 Initially, we note that the

evidence clearly shows that the Charging Party engaged in Union and protected

concerted activities, and that the Employer knew about it. The Charging Party

initiated the organizing campaign and began collecting signatures from other

employees, which eventually led to the Employer’s voluntary recognition of the Union

racetrack and casino operation was primarily a casino and therefore asserting

jurisdiction)

Charging Party engaged in Union and protected

concerted activities, and that the Employer knew about it. The Charging Party

initiated the organizing campaign and began collecting signatures from other

employees, which eventually led to the Employer’s voluntary recognition of the Union

racetrack and casino operation was primarily a casino and therefore asserting

jurisdiction).

27 See, e.g., Hyde Leadership Charter School—Brooklyn, 364 NLRB No. 88, slip op. at

7–9 (2016) (rejecting argument that the Board should discretionarily decline

jurisdiction over charter schools because of extensive state involvement where

respondent received 99 percent public funding, teachers were treated as public

employees under state law, and respondent was subject to a variety of state statutes);

Management Training Corp., 317 NLRB 1355, 1357–58 (1995) (in determining

whether the Board should assert jurisdiction over an employer with close ties to an

exempt government entity, the Board will only consider whether the employer meets

the definition of “employer” under Section 2(2) of the Act, and whether such employer

meets the applicable monetary jurisdictional standards); State Bank of India, 229

NLRB 838, 842 (1977) (holding that there is no public policy or policy of the Act which

justifies the Board to continue to decline jurisdiction on the ground that the employer

is an “agency” or “instrumentality” of a foreign state); Volusia Jai Alai, 221 NLRB

1280, 1280 (1975) (rejecting argument that the Board should use its discretion to

decline jurisdiction over the Jai Alai industry where the state required that all

employees be licensed and that 85% be state residents, retained power to approve all

managerial employees and directly employed people on site in order to maintain the

integrity of the game and the betting procedures, as well as to guarantee that the

game was being played according to the rules); cf

iscretion to

decline jurisdiction over the Jai Alai industry where the state required that all

employees be licensed and that 85% be state residents, retained power to approve all

managerial employees and directly employed people on site in order to maintain the

integrity of the game and the betting procedures, as well as to guarantee that the

game was being played according to the rules); cf. Temple University, 194 NLRB 1160,

1161 (1972) (Board declining jurisdiction where direct state control of a non-profit

university was so extensive as to make it a quasi-public institution).

28 251 NLRB 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.

989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393

(1983).

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A. The Executive Director harbored hostility towards the organizing campaign and

the Charging Party’s role with the Union.

Despite the Employer’s voluntary recognition of the Union, the Executive

Director made various comments on Microsoft Teams and on Twitter that suggest

harbored antiunion animus throughout the bargaining process.33 On February 7, two

days after the Union announced the organizing effort online and one day after the

voluntary recognition agreement, the Executive Director tweeted that

had a bad

week of work because “others” made

job harder than it needed to be. One week

later, the Executive Director sent a message to employees on Microsoft Teams

addressing social media posts and press releases. Disclaiming at the beginning that

was not telling employees to refrain from engaging with the press or posting on

social media, the Executive Director stated

received calls and/or texts every time

someone posted about the Union. This post was framed as an “FYI” and ostensibly

explained why

had been working from home a lot and has been unable to dedicate

time to other tasks

ress releases. Disclaiming at the beginning that

was not telling employees to refrain from engaging with the press or posting on

social media, the Executive Director stated

received calls and/or texts every time

someone posted about the Union. This post was framed as an “FYI” and ostensibly

explained why

had been working from home a lot and has been unable to dedicate

time to other tasks. While these posts do not demonstrate direct animus towards the

Charging Party’s role in organizing and posting on social media, the posts are strong

circumstantial evidence of the Executive Director’s displeasure with Section 7 activity

and the Employer’s discriminatory motivation in terminating the Charging Party’s

employment.34

33 See Holo-Krome Co., 293 NLRB 594, 595 n.6 (1989) (noting that statements

demonstrating opposition to the union or protected activity can serve as a basis for

finding animus even if the statements do not themselves violate the Act). We note

that the Board recently held in United Site Services of California, Inc., 369 NLRB No.

137, slip op. at 14 n.68 (2020) that speech protected by Section 8(c) of the Act cannot

serve as evidence of animus. To the extent that the statements relied upon herein

would be considered protected by Section 8(c), the Region should urge the Board to

overrule United Site Services and find that such speech can be used to establish

discriminatory motive. See CARDS NEO, LLC, Case 14-CA-267122, Significant

Advice Memorandum issued July 27, 2021, at 13-16.

34 Colonial Parking, 363 NLRB No. 90, slip op. at 1 n.3 (2016) (a showing of animus

does not need to be specific towards an employee’s union or protected concerted

activities, citing Libertyville Toyota, 360 NLRB 1298 (2014), enforced, 801 F.3d 767

(7th Cir. 2015)); cf. Tschiggfrie Properties, 368 NLRB No. 120, slip op

4-CA-267122, Significant

Advice Memorandum issued July 27, 2021, at 13-16.

34 Colonial Parking, 363 NLRB No. 90, slip op. at 1 n.3 (2016) (a showing of animus

does not need to be specific towards an employee’s union or protected concerted

activities, citing Libertyville Toyota, 360 NLRB 1298 (2014), enforced, 801 F.3d 767

(7th Cir. 2015)); cf. Tschiggfrie Properties, 368 NLRB No. 120, slip op. at 10, 11

(although the Board overruled the statement from Libertyville Toyota that proving

protected activity was a motivating factor in the employment action does not require

showing “particularized” animus towards the specific employee or any nexus to the

specific protected activity, proof of discriminatory motivation can still be inferred from

circumstantial evidence based on the record as a whole in establishing a causal

connection).

(b) (6), (b)

(b) (6), (b) (

(b) (6), (b)

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (

Case 14-CA-270610

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We also find the Executive Director’s comment during the contentious July 14

bargaining session establishes additional animus toward the Charging Party.35 Here,

in response to the Union’s proposal for a wage increase for the unit, the Executive

Director stated employees in disputed positions, including the Charging Party, could

have their pay docked in order to be included in the unit, or be terminated. Not only

was the Charging Party’s position in the bargaining unit in dispute, but the total

combined dollar amount the Union sought for the entire unit was about equal to the

Charging Party’s salary. This comment, made just three days prior to the Charging

Party’s suspension and eventual termination, establishes additional animus toward

the Charging Party’s role in the Union’s campaign and bargaining. That this

statement was not alleged as an independent 8(a)(1) violation “does not vitiate the

force of the threats contained therein or diminish the weight of these implied threats

of job loss as evidence of antiunion animus and motivation.”36

B

Party’s suspension and eventual termination, establishes additional animus toward

the Charging Party’s role in the Union’s campaign and bargaining. That this

statement was not alleged as an independent 8(a)(1) violation “does not vitiate the

force of the threats contained therein or diminish the weight of these implied threats

of job loss as evidence of antiunion animus and motivation.”36

B. The timing of the Charging Party’s suspension and discharge suggest an inference

of an unlawful motive.

We further conclude the timing of the Charging Party’s suspension and

discharge, in relation to the contentious bargaining session and the petition released

by the Union’s Twitter account, raises a serious question as to the Employer’s

motivation. The Board has long held that “timing alone may suggest anti-union

animus as a motivating factor in an employer’s action.”37 On

, just three days

prior to the Charging Party’s suspension, a contentious bargaining session was held

between the Union and the Employer during which the Executive Director made a

threat of termination and which itself is evidence of animus. That threat, together

with the timing of the Charging Party’s suspension shortly after the bargaining

session creates an inference of animus towards the Charging Party’s protected

concerted and union activity. Additionally, the Union’s press release and online

petition criticizing the Employer for its positions and behavior during bargaining,

where members of the public could demonstrate their support for the Union, was

35 See Amglo Kemlite Laboratories, Inc., 360 NLRB 319, 325 n.16 (2014) (although

unalleged, statements constituting implicit threats may be considered as evidence to

establish an unlawful motivation or animus towards protected activity), enforced, 833

F.3d 824 (7th Cir. 2016).

36 Vico Products Co., 336 NLRB 583, 588 (2001), enforced, 333 F.3d 198 (D.C. Cir.

2003); see e.g., Bandag, Inc. v. NLRB, 583 F.2d 765, 767 (5th Cir

ies, Inc., 360 NLRB 319, 325 n.16 (2014) (although

unalleged, statements constituting implicit threats may be considered as evidence to

establish an unlawful motivation or animus towards protected activity), enforced, 833

F.3d 824 (7th Cir. 2016).

36 Vico Products Co., 336 NLRB 583, 588 (2001), enforced, 333 F.3d 198 (D.C. Cir.

2003); see e.g., Bandag, Inc. v. NLRB, 583 F.2d 765, 767 (5th Cir. 1978) (acts

displaying antiunion animus, although not alleged as independent violations, are

“relevant in assessing the violations that were alleged”).

37 Masland Industries, 311 NLRB 184, 197 (1993), quoting NLRB v. Rain-Ware, Inc.,

732 F.2d 1349, 1354 (7th Cir. 1984); see also Charter Communications, LLC, 366

NLRB No. 46, slip op. at 8 (2018).

(b) (6), (b) (7)(C)

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i.

The Employer’s verbal agreement regarding the Charging Party’s outside

employment, along with evidence of disparate treatment, suggest the

Employer’s reliance on the outside employment policy to be pretextual.

The Employer does not contest that it knew the Charging Party was going to

work for 213 Group on

own time and admits to reaching a verbal agreement about

that work. Despite the handbook rule requiring written approval from the Executive

Director before an employee accepts outside employment, the Employer subverted its

own rule and permitted the Charging Party to continue to work for 213 Group

without any written agreement. Notably, there is disparate treatment evidence that

multiple employees held outside (nonpolitical) employment without receiving written

approval, none of whom were issued discipline by the Employer.42 The Employer

contends that the Executive Director did not know the scope of work that 213 Group

did and that

understood this work to be akin to fun between friends. However, in

emails with the Charging Party prior to

accepting the job in

, the

Executive Director discussed the possibility of the Employer directly contracting with

213 Group for projects

issued discipline by the Employer.42 The Employer

contends that the Executive Director did not know the scope of work that 213 Group

did and that

understood this work to be akin to fun between friends. However, in

emails with the Charging Party prior to

accepting the job in

, the

Executive Director discussed the possibility of the Employer directly contracting with

213 Group for projects. That 213 Group worked in Missouri politics was no secret to

the Employer and is demonstrated by the Employer’s express willingness to hire it. To

the extent that the Employer and Charging Party disagree about the terms of their

verbal agreement, that is a question of fact that should be resolved by an

Administrative Law Judge.

ii.

As the Employer had knowledge of the Charging Party working on the

Secretary’s contested primary, its reliance on the neutrality policy is

pretextual.

The Employer’s reliance on its neutrality policy as a reason for terminating the

Charging Party for working in

capacity as a partner of 213 Group in a contested

Democratic primary is pretextual. Importantly, only weeks before working for Jo

Doll’s campaign, the Charging Party had worked with 213 Group on MDP’s

Secretary’s campaign in

, at the Secretary’s request, in a contested primary.

The Charging Party worked for nearly 10 hours on the Secretary’s campaign while

held

job with the Employer and without any written authorization beforehand.

We reject the Employer’s claim it had no knowledge of the Charging Party

working on the Secretary’s campaign and that

would have been disciplined if it

did. At the time the Charging Party worked on the Secretary’s campaign, the

42 Lucky Cab Co., 360 NLRB 271, 274 (2014), enforced mem., 818 F. App’x 638 (9th

Cir

Employer and without any written authorization beforehand.

We reject the Employer’s claim it had no knowledge of the Charging Party

working on the Secretary’s campaign and that

would have been disciplined if it

did. At the time the Charging Party worked on the Secretary’s campaign, the

42 Lucky Cab Co., 360 NLRB 271, 274 (2014), enforced mem., 818 F. App’x 638 (9th

Cir. 2020) (the fact that certain employees were not discharged for the same or

similar infractions as the discriminates was persuasive evidence in finding the

respondent’s reasons for discharges were pretextual and supported a finding of

animus).

(b) (6), (b)

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6),

(b) (6), (b

(b) (6), (

Case 14-CA-270610

- 16 -

Secretary still held

position on the Employer’s Board of Officers. As an appointed

official of the Employer, the Secretary and other members of the Board of Officers are

presumed agents of the Employer.43 In addition, the Employee Handbook would likely

lead employees to perceive the Secretary, and other members of the Board of Officers,

as agents of the Employer pursuant to the Board’s agency test, which is “whether,

under all the circumstances, an employee would reasonably believe that the alleged

agent was speaking for management and reflecting company policy.”44 Although the

Secretary was neither a manager nor a supervisor of the Employer,

knowledge

about the Charging Party’s 213 Group work is properly attributable to the Employer

because of the Secretary’s status as an agent.45 We find that because the Employer

allowed the Charging Party to work on the Secretary’s contested campaign in

, it

cannot rely on the neutrality policy to justify the Charging Party’s termination as that

reliance is pretextual.

D. Regardless of the pretextual nature of the Employer’s rationale for its adverse

action, it has failed to carry its Wright Line burden

ry’s status as an agent.45 We find that because the Employer

allowed the Charging Party to work on the Secretary’s contested campaign in

, it

cannot rely on the neutrality policy to justify the Charging Party’s termination as that

reliance is pretextual.

D. Regardless of the pretextual nature of the Employer’s rationale for its adverse

action, it has failed to carry its Wright Line burden.

When an employer’s purported lawful reasons for an adverse action are

pretextual, it fails, as a matter of law, to carry its burden under Wright Line.46 We

note that the evidence of pretext discussed above obviates the need for any further

analysis of the Employer’s rebuttal burden.47 Nevertheless, even if the Board

43 Nemacolin Country Club, 291 NLRB 456, 458 (1988) (noting that elected or

appointed officials are “presumed to be agents clothed with apparent authority”),

enforced, 879 F.2d 858 (3d Cir. 1989); see also IBEW, Local 453, 258 NLRB 1427, 1428

(1981) (“While the holding of elective office does not mandate a finding of agency per

se, such status is persuasive and substantial evidence which will be decisive absent

compelling contrary evidence”).

44 House Calls, Inc., 304 NLRB 311 (1991), citing Lovilia Coal Co., 275 NLRB 1358,

1372 (1985).

45 See Merrill Iron and Steel, Inc., 335 NLRB 171, 173 (2001) (attributing anti-union

statements from a voting member of the respondent’s board of directors to the

Respondent because of his status as an agent); State Plaza Hotel, 347 NLRB 755, 756

(2006) (“Since Aouli was an agent of the Respondent at the time, his knowledge may

be imputed to the Respondent”).

46 Accord Limestone Apparel Corp., 255 NLRB 722 (1981), enforced mem. 705 F.2d 799

(6th Cir. 1982), see also Metropolitan Transportation Services, 351 NLRB 657, 659

t’s board of directors to the

Respondent because of his status as an agent); State Plaza Hotel, 347 NLRB 755, 756

(2006) (“Since Aouli was an agent of the Respondent at the time, his knowledge may

be imputed to the Respondent”).

46 Accord Limestone Apparel Corp., 255 NLRB 722 (1981), enforced mem. 705 F.2d 799

(6th Cir. 1982), see also Metropolitan Transportation Services, 351 NLRB 657, 659

(2007); Rood Trucking Co., 342 NLRB 895, 898 (2004).

47 See Golden State Foods Corp., 340 NLRB 382, 385 (2003) (where it is shown that

the respondent’s reasons “are pretextual… the [r]espondent fails by definition to show

(b) (6), (b)

(b) (6), (b

(b) (6), (b) (7)(C

Case 14-CA-270610

- 17 -

disagrees that the Employer’s reasons for terminating the Charging Party are

pretextual, the Employer still has not met its burden. The Employer knew about the

Charging Party’s work with 213 Group and verbally agreed that

could continue to

do such work, and there were multiple employees who held outside employment and

were not disciplined. Despite competing claims by the Charging Party and the

Employer about the terms of the verbal agreement on

outside employment, that

the Employer chose to ignore its own neutrality policy restricting what

could do in

capacity as a partner for a political consulting firm is instructive in why

took

on work for Democratic candidates in contested primaries. Further, the Employer’s

acceptance of the Charging Party’s work with 213 Group on the Secretary’s campaign

belies its reliance on the neutrality policy in deciding to terminate the Charging

Party’s employment.

III.

Conclusion

Accordingly, the Region should issue complaint, absent settlement, alleging that

the Employer violated Section 8(a)(1) and (3) of the Act when it suspended and

terminated the Charging Party.

/s/

R.A.B.

ADV.14-CA-270610.Response.MissouriDemocraticParty

ign

belies its reliance on the neutrality policy in deciding to terminate the Charging

Party’s employment.

III.

Conclusion

Accordingly, the Region should issue complaint, absent settlement, alleging that

the Employer violated Section 8(a)(1) and (3) of the Act when it suspended and

terminated the Charging Party.

/s/

R.A.B.

ADV.14-CA-270610.Response.MissouriDemocraticParty.

that it would have taken the same action for those reasons, absent the protected

conduct, and thus there is no need to perform the second part of the Wright Line

analysis”), citing Limestone Apparel Corp., 255 NLRB 722 (1981), enforced 705 F.2d

799 (6th Cir. 1982).

(b) (6), (b) (7

(b) (6),

(b) (6), (b

(b) (6), (

(b) (6), (b)

(b) (6), (