## Facts

- In November 2000, Antoine Worthman signed a three-year contract to play for the Detroit Fury, an Arena Football League club owned by Palace Arena Football, LLC.
- Worthman served as the Fury’s player representative to the Arena Football League Players Association (the union).
- In mid-November 2001, Worthman spoke with Jay Gruden, an executive for another AFL team, and said that Worthman’s teammate Kelvin Kinney wanted higher pay and might be available for acquisition.
- Gruden informed Fury coach Darrel Morris that Worthman had said Kinney was available.
- Morris, angry about Worthman’s conversation with Gruden, left Worthman a voicemail stating that he was considering cutting Worthman for discussing Kinney’s availability with another team.
- Later the same day, Morris spoke with Worthman by telephone and expressed anger about the Gruden conversation.
- During that call, Worthman mentioned union-related conduct, including that he had told teammates to look at the union’s website and had given teammates information about the club’s salary-cap status.
- In early December 2001, after the club acquired another player at Worthman’s position, the club cut Worthman.
- The NLRB General Counsel issued a complaint alleging Palace threatened to cut Worthman and then cut him because of his union activity, violating NLRA §§ 8(a)(1) and 8(a)(3).
- Palace contended it cut Worthman for non-union reasons, including upgrading talent at Worthman’s position and viewing Worthman as disloyal for discussing Kinney’s possible availability with another team; Palace also claimed Morris was not troubled by Worthman’s union-related statements.
- An administrative law judge found violations, and the NLRB adopted the findings and order.

## Issues

1. Whether the coach’s voicemail and related statements that he was considering cutting Worthman constituted an unlawful threat under NLRA § 8(a)(1).
2. Whether Palace discriminatorily discharged Worthman because of protected union activity, in violation of NLRA § 8(a)(3) (and derivatively § 8(a)(1)), under the Wright Line mixed-motive framework.

## Decision

- The NLRB found Palace violated § 8(a)(1) by threatening Worthman with discharge in response to conduct connected to union-related activity and employee compensation concerns.
- The NLRB found Palace violated § 8(a)(3) and (1) by discharging Worthman because protected union activity was a motivating factor in the decision and Palace did not establish it would have discharged him absent that protected activity.
- The NLRB ordered standard remedial relief, including cease-and-desist provisions, reinstatement (or a substantially equivalent position), backpay with interest, removal of references to the unlawful discharge, and posting of a remedial notice.

## Legal Principles

- An employer violates NLRA § 8(a)(1) when, considering context, its statements would reasonably tend to interfere with, restrain, or coerce employees in exercising § 7 rights, including by threatening discharge for union involvement.
- NLRA § 8(a)(3) prohibits discrimination in discharge or other adverse action that is motivated by union activity or intended to discourage union activity; such discrimination also constitutes a derivative § 8(a)(1) violation.
- Under Wright Line, the General Counsel must show (i) protected activity, (ii) employer knowledge, and (iii) that the protected activity was a motivating factor in the adverse action; the burden then shifts to the employer to prove it would have taken the same action absent the protected activity.
- Timing, evidence of hostility to protected activity, threats closely followed by adverse action, and credibility determinations can support an inference of unlawful motivation and a finding that asserted business reasons are pretextual.

## Conclusion

In Palace Arena Football and Arena Football League Players Association, the NLRB concluded that the Detroit Fury’s coach unlawfully threatened to cut, and the club then cut, player-representative Antoine Worthman because of protected union-related activity tied to player pay and working conditions, and the Board ordered make-whole relief under the Wright Line burden-shifting test.


Palace Arena Football and Arena Football League Players Association, 2003 NLRB LEXIS 190 (2003)