Conflicting Evidence Means Union Wins at Hearing

The National Labor Relations Board must issue a complaint if it finds conflicting testimony during an investigation of an alleged unfair labor practice charge. When an unfair labor practice charge alleges a supervisor said or did something and the supervisor said he didn’t; that he said, she said situation is conflicting testimony that can generally only be resolved by an administrative law judge after a hearing. The judge weighs the testimony of both sides, decides which side is more credible, and makes a determination of which side wins. But now it appears that conflicting evidence alone is enough to find against an employer and declare the union the winner without having a hearing.

In 2011 a management company was hired to manage a hotel. At that time, the housekeeping functions had been outsourced to a staffing company. The management company terminated the contract with the staffing company and brought the housekeeping function in-house. Shortly thereafter, the housekeeping effectiveness waned to an all-time low (based on performance metrics). The management company outsourced housekeeping to the staffing company. So where does the conflicting testimony come in?

At the time the management company decided to outsource the housekeeping functions, hotel employees had just started a union organizing drive. The union (and the NLRB) alleged that the outsourcing was motivated by anti-union animus. The management company argued that to prove it, the Board must produce evidence that the discrimination “in fact caused or resulted in a discouragement of union membership.” The Fifth Circuit ruled that the NLRB “need not prove discouragement as a matter of fact.”

The Fifth Circuit noted that the NLRB relied on evidence of two union-related conversations between housekeepers and Hotel supervisors prior to the outsourcing decision, as well as the statement of another supervisor that the outsourcing decision was “because of the union.” Together these constituted substantial evidence of an unlawful motive. Stating that it must pay “special deference” to the NLRB’s resolution of conflicting evidence, the court upheld the NLRB’s order.

And so it is: conflicting evidence is enough to find illegal motivation and rule against an employer.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at