Kava Holdings, LLC, dba Hotel Bel-Air v. National Labor Relations Board

This Court and the National Labor Relations Board have established a test, in applying 29 U.S.C. § 158(a)

1. 1 of the National Labor Relations Act (hereinafter “8(a)(3)”) that allocates the burden of proof in cases in which it is alleged that an employer has taken an adverse employment action (failure to hire; discharge; etc.) because of anti-union animus. The Board has vacillated, however, as to whether so-called “generalized” evidence of animus, in the absence of any nexus between such animus and the adverse action, is sufficient to prove a violation of Section 8(a)(3). In some cases, the Board has required a motivational link or nexus, or particularized motivating animus. In other cases, including recently, it has expressly rejected this element. These inconsistent holdings have led to a split among the federal circuit courts on this issue. The question presented in this case is: In a case involving alleged refusals to hire based on anti-union animus under Section 8(a)(3), may the Board rely solely on “generalized” animus, when such evidence is not causally connected to the specific hiring decisions at issue?

2. “It shall be an unfair labor practice for an employer—…

3. by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…”