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.

Explore more

Business Central Mobile Apps Transform Operations On-the-Go

In an era where business agility defines success, the ability to manage operations from any location has become a critical advantage for companies striving to stay ahead of the curve, and Microsoft Dynamics 365 Business Central mobile apps are at the forefront of this shift. These apps redefine how organizations handle essential tasks like finance, sales, and inventory management by

Transparency Key to Solving D365 Pricing Challenges

Understanding the Dynamics 365 Landscape Imagine a business world where operational efficiency hinges on a single, powerful tool, yet many enterprises struggle to harness its full potential due to unforeseen hurdles. Microsoft Dynamics 365 (D365), a leading enterprise resource planning (ERP) and customer relationship management (CRM) solution, stands as a cornerstone for medium to large organizations aiming to integrate and

Generative AI Transforms Finance with Automation and Strategy

This how-to guide aims to equip finance professionals, particularly chief financial officers (CFOs) and their teams, with actionable insights on leveraging generative AI to revolutionize their operations. By following the steps outlined, readers will learn how to automate routine tasks, enhance strategic decision-making, and position their organizations for competitive advantage in a rapidly evolving industry. The purpose of this guide

How Is Tech Revolutionizing Traditional Payroll Systems?

In an era where adaptability defines business success, the payroll landscape is experiencing a profound transformation driven by technological innovation, reshaping how companies manage compensation. For decades, businesses relied on rigid monthly or weekly pay cycles that often failed to align with the diverse needs of employees or the dynamic nature of modern enterprises. Today, however, a wave of cutting-edge

Why Is Employee Career Development a Business Imperative?

Setting the Stage for a Critical Business Priority Imagine a workplace where top talent consistently leaves for better opportunities, costing millions in turnover while productivity stagnates due to outdated skills. This scenario is not a distant possibility but a reality for many organizations that overlook employee career development. In an era of rapid technological change and fierce competition for skilled