During his tenure at Tera Advanced Services Corporation, Dan Malloy had received many warnings concerning below-average attitude and productivity, including a "final warning" and company probation in January. After this warning, however, Malloy's attitude and production improved so greatly that his supervisor told the operations manager that the warnings had been successful and no further disciplinary action was needed. On February 4, Malloy attended a company lunch where employees were allowed to ask questions of Tera's project manager, James Long. In front of other employees, Malloy asked Long how he would feel about the formation of a union for the employees. Malloy proceeded to cite the advantages of a union. Long was visibly angered by the question and exclaimed after the lunch "who the hell does he think he is, asking to form a union at Tera." Long then demanded to see Malloy's personnel file, and he determined that his record was "terrible."
He decided to discharge Malloy. Long ordered a memorandum compiled outlining Malloy's employment record. The following day Dan Malloy was discharged. Malloy claimed before the NLRB that he was discharged because of his question at the lunch. He claimed that asking that question was a protected activity. He believed that Tera had committed Section 8(a)(3) and (1) unfair labor practices. Tera Corporation contended Malloy would have been discharged even if he had not attended the company lunch and supported its position with the memorandum Long had ordered compiled. What factors must the Board consider in deciding this case? Is there sufficient evidence of Section 8(a)(3) and (1) violations? Decide.
[Tera Advanced Services Corp., 259 NLRB No. 125, 109 LRRM 1053]