1. In the summary judgment, unlike in the motion to dismiss, the allegations in the complaint are not accepted as true. Instead, the movant relies on his/her own evidence and the lack of evidence by the non-moving party. In other words, a motion to dismiss is based on some procedural matter and is often fixable. On the other hand, a motion for summary judgment is a substantive ruling and has the same legal effect as if a trial had occurred.
2. If it is a common practice of uniformed employees at Factory X to decorate their uniforms with pins and buttons, such as Mets insignia and angel pins. Then, it would be illegal (unfair labor practice) under the NLRA for the disciplining of employees wearing union buttons during the Union campaign because rules adopted (especially, for the sole purpose of discriminating against union activism) immediately after a campaign has begun may have the appearance of being promulgated for an unlawful purpose. Moreover, ‘special circumstances’ allowing restriction for specific reasons as the need for safety; production, or other legitimate business purpose is moot since it is common practice for the employees to decorate their uniforms with other (non-union) pins and buttons.
3. The creation of a division in the NLRB, by the Taft-Hartley Act, so that the people prosecuting unfair labor practices were not the same people making the final determination represents, in my opinion, a negative change for two reasons. First, the Taft-Hartley Act was motivated by anti-union sentiments.
Second, the General Counsel is responsible for investigating and prosecuting unfair labor practice claims while the Board is the adjudicative body that decides the unfair labor practices cases brought to it. Despite the General Counsel’s limited independence to argue for a change in the law in presenting cases to the Board, the General Counsel has to defend the Board’s decision (final decision on the issue) even if it is contrary to the position he advocated when presenting the case to the Board.
In other words, I can’t imagine a General Counsel passionately and effectively defending a Board’s decision he vehemently disagrees with – which is counterproductive to union activism. For illustration, in 1832, when Andrew Jackson was President, the Supreme Court ruled that Georgia (ironically, an anti-union State) had acted unconstitutionally. However, Jackson refused to enforce the Court’s ruling.
Jackson’s disagreement with the Supreme Court’s decision led to the “Trail of Tears.” Thus, the Taft-Hartley Act’s ‘divide and conquer’ tactics wants to push unions toward a “Trail of Tears.” Unfortunately, the Taft-Hartley Act might be succeeding…. For example, the current General Counsel, appointed by President Bush Jr., used to be a union busting attorney.
4. The three elements needed in order for an employee to make out a prima facie case of discrimination under Section 8(a)(3) of NLRA are that the Complainant must show that the employee engaged in protected, concerted activities; the employer had knowledge of those activities, and the employer harbored anti-union animus.