Allied Mechanical, 356 NLRB No. 35 (2010)

Another case on the NLRB insubordination theme...

This case has an involved procedural history. First, there was Allied Mechanical I (Allied Mechanical,  Inc., 343 NLRB 631 (2004)) where the Board found that the Employer had  violated Section 8(a)(3) and (1) of the NLRA by issuing two warnings to employee and union advocate, Pinheiro.  Pinheiro's troubles did not end there, and later he mistakenly believed that he had been cut out of overtime.  He confronted his supervisor about the issue and the supervisor told him that due to the union and problems with the Labor Board, overtime procedures would be in accordance with the employee hand book. Pinheiro then made a comment that he probably regrets making.  He was suspended and terminated purportedly for insubordination and poor work performance.  The Board analyzed the suspension and discharge under Wrightline (rather than the Atlantic Steel analysis featured in most of the cases posted so far) in Allied Mechanical, 349 NLRB 1077 (2007), and reversed the ALJ, ruling that the suspension and termination were lawful. The Board assumed without deciding that a prima facie case had been made out, but found that the Employer had rebutted the prima facie case by proving it would have terminated Pinheiro with or without his union activity.  However, in 321 Fed. Appx. 581 (9th Cir. 2009), the 9th Circuit reversed the Board's ruling as to the Employer's rebuttal and remanded the case to the Board to decide if the prima facie case had been made out. Whereby Allied Mechanical, 356 NLRB No. 35 (2010) was born and Pinheiro's suspension/termination was found to be unlawful.