Joseph Richardson Discusses NLRB’s Clarification of Anti-Union Bias Test

A recent decision by the National Labor Relations Board (NLRB) clarifies that a large amount of direct evidence is not needed to find violations against employers for punishing workers for organizing. The decision was issued in a lawsuit alleging packaging products maker Intertape Polymer Corp. reprimanded two workers because of their union support.

In this case, the NLRB’s General Counsel asked the Board to reverse its 2019 decision in Tschiggfrie Properties, in which the Board’s then-Republican majority found that an employer cannot be proven to have acted on anti-union bias “by simply producing any evidence of the employer’s animus or hostility toward union or other protected activity,” Instead of reversing this decision, the Board clarified that Tschiggfrie did not alter the previously established test for proving bias claims and that the General Counsel may still prove bias using general evidence, such as shifting justifications by the employer or departure from past practices, rather than evidence of particularized animus toward the individual employee’s activity.

In an article in Law360, Willig, Williams & Davidson attorney Joseph Richardson weighs in on this recent decision and how it deviates from the previous Republican-led majority’s views on these kinds of cases, saying, “My takeaway from Tschiggfrie when it came out was that … the board was going to be taking a narrower view of the animus requirement and would be, whether it said so or not … subjecting the quantum of evidence regarding animus to greater scrutiny than would a more worker- or union-oriented board.”

Prosecutors speculate that this recent clarification may make it more difficult for employers to make their case in situations where anti-union bias cannot be found through direct evidence.

Read the full article online: NLRB’s Clarified Bias Test Puts Employers On Alert (Subscription is required.)