In the meantime, the decision will have an impact on employers who must defend mixed motive unfair labor practice charges.

On August 25, 2023, the National Labor Relations Board (NLRB) issued a decision in Intertape Polymer Corp. that clarified the Board’s interpretation of the standard that it applies in so-called “mixed motive” cases. Although the Board framed its decision as merely clarifying the meaning of preceding cases, the practical impact will be to make it more difficult for employers to defend against charges that they were motivated by anti-union animus when disciplining or terminating employees for violating otherwise lawful policies.

Background

For decades, the Board has applied the standard from Wright Line, 251 NLRB 1083 (1980) to mixed motive cases. A mixed motive case is one in which there is evidence that an employer had both lawful and discriminatory reasons for taking an adverse action against an employee. For example, it might be lawful for an employer to discipline a worker who breaks a safety rule, but if there is evidence that anti-union animus motivated the discipline, the discipline would violate the National Labor Relations Act.

The ultimate goal of the Wright Line test is to determine whether anti-union animus was a motivating factor in an otherwise permissible decision. The Wright Line standard calls for a two-step burden-shifting framework. In the first step, the General Counsel for the NLRB is required to make out a prima facie case by establishing three elements: (1) that the employee was engaged in union or other protected activities; (2) that the employer knew of these activities; and (3) that there was animus on the part of the employer. If the General Counsel succeeds, then the burden shifts to the employer to prove that it would have taken the same action even in the absence of protected activity. Intertape Polymer addresses the first step of the framework—the prima facie case.

While the Board has historically framed the prima facie case as encompassing only three elements, a handful of Board decisions from the early 2000s suggested that there was a fourth requirement: that the General Counsel establish a causal nexus between the employer’s animus and its actions toward a specific employee. That is, the General Counsel could not merely show that the employer was generally hostile to the union, but had to establish that the animus manifested itself in relation to a specific employee’s union or other protected activities. But these cases were the exception. In the years that followed, the Board regularly corrected administrative law judges who referred to a fourth nexus requirement. And in 2014, in Libertyville Toyota, 360 NLRB 1298 (2014), the Board explicitly held that the General Counsel was not obligated to show a causal nexus to make out a prima facie case.

A number of courts criticized the refusal to acknowledge a nexus requirement, and the Eighth Circuit refused to enforce Board rulings on this ground. In response to this criticism, the Trump Board issued its decision in Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (Nov. 22, 2019), which held that “[t]he General Counsel does not invariably sustain his burden of proof under Wright Line whenever…the record contains any evidence of the employer's animus or hostility toward union or other protected activity.”

While the Tschiggfrie Board insisted that it was not introducing a nexus requirement, many observers saw the decision as an indication that some evidence that general anti-union animus manifested itself in relation to an individual employee would be required in most cases. Intertape Polymer dashed these hopes.

The Intertape Polymer Case

Intertape Polymer concerned two employees, one a union steward and the other a union committee member, who were the subject of two unfair labor practice charges. The first charge came after the employees were disciplined for their behavior during a tense confrontation on the shop floor. Less than a week after the filing of that charge, they were disciplined again for failing to clean their workspace. Although the manager who imposed the second discipline was apparently not aware of the first charge, this second incident gave rise to a second charge.

An administrative law judge dismissed the second charge, holding that there was no evidence that anti-union animus motivated the disciplinary actions. General Counsel Jennifer Abruzzo appealed the ruling to the Board, attempting to use the case as a vehicle for overruling Tschiggfrie. According to Abruzzo, Tschiggfrie had impermissibly altered the Wright Line framework by requiring a showing of causal nexus.

The Board ultimately denied the General Counsel’s request to overrule Tschiggfrie, but still managed to reach her desired result. Instead of overruling Tschiggfrie, the Board effectively “clarified” it out of existence. Tschiggfrie, the Board held, had not actually altered the Wright Line framework at all. As the Board explained, both before and after Tschiggfrie, the General Counsel can meet her burden by relying on circumstantial evidence and there is no need to “produce separate or additional evidence of particularized animus toward an employee’s own protected activity or of a causal ‘nexus’ between the protected activity and the adverse action to meet her burden.”

The practical effect of the decision is to make it easier for the General Counsel to satisfy her initial burden in mixed motive cases. To make out a prima facie case, the General Counsel will merely have to establish that the employee was engaged in protected activities, that the employer was aware of these activities, and that there is some evidence of general animus (e.g., expressing anti-union sentiments in the presence of employees). Assuming that the General Counsel meets this relatively modest burden, employers will have to prove that they would have taken the same action even in the absence of protected activities.

What This Means for Employers

It is possible that one or more courts will eventually reject Intertape Polymer because it fails to adopt a nexus requirement. In the meantime, the decision will have an impact on employers who must defend mixed motive unfair labor practice charges. Where before Intertape Polymer an employer might have pointed to the absence of evidence showing a causal connection between an individual employee’s protected activities and an adverse action, that argument no longer appears to be viable. So long as Intertape Polymer is Board law, an employer’s best (and perhaps only) defense to a charge in a mixed motive case will be the ability to prove with contemporaneous documents that, even in the absence of protected activity, other employees who engaged in the same or similar conduct as the charging party were treated the same.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, James R. Redeker, Jesse Stavis, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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