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NLRB Clarifies General Counsel's Initial Burden in Wright Line Analysis of Employer Motive
Practical Law Legal Update w-022-9829 (Approx. 5 pages)
NLRB Clarifies General Counsel's Initial Burden in Wright Line Analysis of Employer Motive
by Practical Law Labor & Employment
| Law stated as of 25 Aug 2023 • USA (National/Federal) |
In Tschiggfrie Properties, Ltd., the National Labor Relations Board (NLRB) concluded that to meet the burden of proof under Wright Line, the General Counsel must provide evidence of a causal relationship between an employee's protected activity and the employer's adverse action against that employee, not just an employer's animus towards unions or protected activity.
On November 22, 2019, in Tschiggfrie Properties, Ltd. the panel (Board) heading the NLRB's judicial functions:
- Held that:
- the Wright Line test is a causation test; and
- the NLRB General Counsel does not invariably sustain his burden of proof under Wright Line when, in addition to protected activity and knowledge of that activity, the record contains any evidence of the employer's animus toward union or other protected activity. To satisfy the initial burden under Wright Line, the evidence, whether direct or indirect, must establish a causal relationship between the employee's protected activity and the employer's adverse action against the employee.
- Overruled the often-cited Libertyville Toyota and Mesker Door, Inc. to the extent they held that "proving that an employee's protected activity was a motivating factor in the employer's action does not require the General Counsel to make some additional showing of particularized motivating animus towards the employee's own protected activity or to further demonstrate some additional, undefined nexus between the employee's protected activity and the adverse action." (360 N.L.R.B. 1298, 1301 at n.10 (2014); see 357 N.L.R.B. 591, 592 at n.5 (2011)).
- Affirmed that the NLRB General Counsel nevertheless satisfied his burden under Wright Line when applied appropriately and that the employer did not demonstrate that it would have discharged the employee had he not engaged in union activity.
The NLRB clarified that the Board will not, as it has in recent years, infer unlawful employer motivation from any evidence of an employer's general animus under Wright Line. The decision resolves criticism by the Seventh and Eighth Circuits concerning the NLRB's recent looser interpretation of the General Counsel's initial burden under Wright Line (see AutoNation, Inc. v. NLRB, 801 F.3d 767, 769 (7th Cir. 2015), enforcing Libertyville Toyota without adopting its analysis; Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554 (8th Cir. 2015), denying enforcement of 361 N.L.R.B. 216 (2014)).
UPDATE
On August 25, 2023, a Board majority clarified that Tschiggfrie Properties did not heighten or otherwise modify the General Counsel's initial evidentiary burden under Wright Line. Specifically, the majority:
- Reaffirmed that an employer's unlawful antiunion motivation may be inferred from both direct and circumstantial evidence based on the record as a whole.
- Confirmed that satisfaction of the General Counsel's initial Wright Line burden does not require separate or additional evidence of:
- particularized animus toward a specific employee's protected activity; or
- a causal nexus between the protected activity and the adverse employment action.