NLRB Decision Could Make Unfair Labor Practices Charges Easier to Bring

​Employers should inform managers and supervisors about a recent National Labor Relations Board (NLRB) decision that could make companies more vulnerable to unfair labor practices charges.

The board's Intertape Polymer Corp. decision "is significant because it can be interpreted to lessen the general counsel's initial burden under the Wright Line test," said Erik Laiho, an attorney with Fisher Phillips in Portland, Ore., and Seattle. The general counsel is independent from the NLRB and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.

Before this decision, the general counsel had to show that the employer's adverse action against an employee was due to particularized, hostile motivation—or "animus"—toward that employee's protected activity under the National Labor Relations Act (NLRA), Laiho said.

Following Intertape Polymer Corp., "the board now provides that the general counsel can meet her burden through evidence of the employer's general anti-union animus even if it isn't directed at the specific employee's protected activity," Laiho said.

Wright Line Burden

The key NLRB holding in Intertape Polymer Corp. was that the general counsel's burden of establishing a labor law violation under Wright Line has not changed despite language included in a 2019 board decision called Tschiggfrie Properties Ltd. The 2019 decision had previously been interpreted to heighten the general counsel's Wright Line initial burden, Laiho said.

Under Wright Line, the elements required to sustain this burden are:

• Union or other protected activity by the employee.
• Employer knowledge of that activity.
• Employer animus against the union or other protected activity.

Applying the Wright Line analysis to the facts of the case, the board reversed the administrative law judge and found that the general counsel met her burden of establishing that the employer's discipline of two employees was motivated by the workers' protected activity.

Discipline of Employees

Intertape Polymer Corp. manufactures adhesive tape and other packaging products at a facility in Marysville, Mich. On Feb. 3, 2021, at approximately 2 a.m., a machine at the Marysville facility caught fire. A maintenance electrician extinguished the fire. At approximately 6:45 a.m., the maintenance manager arrived at the facility.

After inspecting the machine, the manager requested the electrician show him what he had done to put out the fire. As they were walking toward the machine, the electrician asked the manager to get a lock for it. The manager said that the machine did not need to be locked out because no one was going to touch it. The electrician disagreed and asked for a union representative. A union steward, who was a production employee, arrived.

They discussed why the machine needed to be locked out and continued to disagree until the manager ordered the steward to go back to work and the electrician to accompany him to inspect the machine, saying there would be repercussions if he didn't. The union steward insisted that he accompany them because the manager had threatened the electrician with discipline. The manager denied he had threatened to discipline the electrician. The union steward continued to insist he accompany them.

The manager then informed the electrician he was suspended "because I can't work with you right now" after which he immediately turned to the union steward and said he was not going to "allow the union to bully management."

The electrician left the manager's office, but the union steward remained to ask questions about the suspension. The manager said the meeting was over and told the union steward to leave his office, which the union steward did after asking if that was a direct order.

Two weeks later, the company issued a written verbal warning to the electrician and a final warning disciplinary action to the union steward and suspended him for five days without pay.

After the union steward's suspension and a week after another production employee filed an unfair labor practice charge, the steward and that production employee were operating a machine and were given verbal warnings for not adequately cleaning several rolls of tape that had fallen on the floor.

The NLRB found that the company violated the NLRA by issuing these latest warnings. The company failed to show it had previously disciplined an employee for inadequate cleaning or comparable conduct, the NLRB said. The board also noted the decision to discipline came soon after the company received grievances about disciplining the steward and the electrician for their conduct on Feb. 3.

The NLRB severed the allegations concerning the discipline regarding the Feb. 3 meeting and issued a notice to show cause why those allegations should not be sent back to the administrative law judge for further consideration.

Other Lessons from the Decision

The NLRB stated several times in Intertape Polymer Corp. that circumstantial evidence can support an inference of animus and a causal connection, said Andrew Herman, an attorney with Blank Rome in Philadelphia.

Following this decision, NLRB General Counsel Jennifer Abruzzo may use stray anti-union comments or actions to satisfy her initial burden to prove a labor law violation, Laiho said.

The board will have leeway to find more violations, particularly in gray areas, said Robert Boonin, an attorney with Dykema in Ann Arbor, Mich.

Employers should ensure their legitimate and lawful business rationales are well documented before acting, said Grant Pecor, an attorney with Barnes & Thornburg in Grand Rapids and Ann Arbor, Mich., and Chicago.

In addition, employers should have fair policies and consistent application, said Melissa Atkins, an attorney with Obermayer in Philadelphia.

"The best way an employer can avoid these retaliation claims is to make sure managers are trained on the NLRA," said Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla.