NLRB Clarifies Burden of Proof Under Wright Line
The Board recently issued a decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023) clarifying what needs to be proven to show that an employee was disciplined on account of union or protected concerted activity.
When an employee is fired or disciplined allegedly due to union or protected concerted activity, the NLRB typically applies a test referred to as “Wright Line” based on a case decided in 1980. Under the Wright Line framework,
The NLRB General Counsel first must provide sufficient evidence that the employee’s union and/or protected concerted activities were a “motivating factor” in the employer’s discipline or termination of the employee. In other words, there must be evidence that at least part of the reason for the discipline was because that employee exercised their right to engage in conduct protected by the National Labor Relations Act. The discipline is referred to as the adverse action.
Once that is shown on behalf of the employee, then the employer must show it had a non-discriminatory reason for the adverse action and that it would have taken the same adverse action in the absence of the employee’s protected activity.
If the employer cannot show a non-discriminatory reason, the Board concludes that the adverse action was motivated by the employee’s protected activity and finds a violation.
In Intertape, following a manager’s plant inspection, the employer issued disciplinary notices to a union steward and union committeeman, which were challenged at hearing on the basis that this discipline was based on the employees’ union activity. The Board addressed concerns that a case decided in 2019 by the Trump Board, Tschiggfrie Properties, Ltd (2019), had made it harder to prove an employer was motivated at least in part by an employee’s union or protected activity by requiring proof that the Employer had specific animus against the employee in question. The Board explicitly clarified that Tschiggfrie did not alter or heighten the burden under Wright Line.
Applying Wright Line in Intertape, the Board determined the record as a whole showed Intertape harbored animus towards the union steward and committeeman based on their union activity, and that animus was a motivating factor in the decision to discipline, in violation of the Act. For instance, the manager involved testified that he did not regularly do inspections and could not explain why he did one in this specific instance, the manager could not explain why he recommended higher levels of discipline than were appropriate under the company’s progressive discipline model, and the employer could not point to any other instances where employees had been disciplined for similar issues.
In addition to clarifying Wright Line, the Board briefly addressed Lion Elastomers. Following a heated informal grievance meeting between a union steward, maintenance employee, and manager, Intertape issued disciplinary notices to the steward and employee. For more information on Lion Elastomers, see our previous article here.
For more information on Intertape Polymer Corp., please contact your labor law counsel.