NLRB Decision Clarifies Standard for Showing Adverse Employment Action Motivated by Union or Protected Activity

August 30, 2023

NLRB Decision Clarifies Standard for Showing Adverse Employment Action Motivated by Union or Protected Activity

In a recent decision published on Monday, the National Labor Relations Board (NLRB) clarified the standard that its general counsel must meet to establish that an employer’s adverse employment action is driven by union or other protected activity. This decision marks another reversal in labor law by the board in recent weeks, indicating the ongoing debate and changes in this area.

Background on the Tschiggfrie Properties Decision

Four years ago, when the board was under Republican majority, the NLRB held in Tschiggfrie Properties that the general counsel needed to establish a causal relationship between an employee’s protected activity and the employer’s adverse action to show animus towards the activity. This requirement aimed to ensure a solid connection between the two factors before attributing any adverse action to protected activity.

The Monday Decision by NLRB in Intertape Polymer Corp. Case

However, the current Democratic majority on the NLRB, in the recent decision regarding Intertape Polymer Corp., expressed their disagreement with the clarification provided in Tschiggfrie Properties. They deemed it unnecessary and prone to misinterpretation, indicating a departure from their previous stance.

Affirmation of the Wright Line Standard

While acknowledging the potential misinterpretation of their Tschiggfrie decision, the NLRB emphasized that it did not alter the standard set forth in the Wright Line case. The board stated that it analyzes the evidence in its entirety to determine if there is a reasonable inference that protected activity was a motivating factor behind an adverse employment action. This reaffirms the importance of considering all available evidence rather than solely relying on a causal relationship between protected activity and adverse action.

Dissenting opinion by Marvin Kaplan

Marvin Kaplan, the lone Republican member of the board, dissented but conceded that the Tschiggfrie decision did not modify the Wright Line standard. This indicates that there is some agreement across the board regarding the interpretation and application of the standard.

Reversal and Revisiting of Trump-era Board Decisions

The Intertape Polymer Corp. decision is part of a series of events that involve the reversal or revisiting of decisions made by the NLRB during the Trump administration. One notable example is the decision regarding Cemex Construction Materials Pacific, LLC, where the board partially reinstated a framework from 1949 to determine when employers must recognize and bargain with unions in the absence of a representation election. Additionally, a final rule aimed at removing barriers to union elections has also been revisited.

As we enter the final quarter of 2023, union activity remains an active and evolving area of employment law. The NLRB’s decision in the Intertape Polymer Corp. case clarifies the standard for showing that adverse employment action is motivated by union or protected activity. This decision, along with the reversal and revisiting of Trump-era board decisions, underscores the importance of staying informed about developments in labor law. Employers and employees alike should monitor these changes to ensure compliance with the evolving legal landscape surrounding union activity.

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