In the first installment of our Labor and the Law Blog, RQN Attorney Lydia Ann Owens Rytting answers common employer questions and educates about the basics of NLRA Compliance.
Answer: No. It would violate the National Labor Relations Act to terminate an employee for union activity. However, you may take adverse action against them if it is sufficiently unrelated to their union activity.
Under the analysis set forth in Wright Line, to prove an employer violated Section 8(a)(3) by taking adverse action against an employee in retaliation for engaging in protected concerted activity, the evidence must show that (1) the employee was engaged in protected activity, (2) the employer had knowledge of that activity, and (3) the employer’s hostility to the protected activity was a “substantial or motivating” factor in its decision to take adverse action against the employee. Wright Line, 251 NLRB 1083, 1084 (1980), enf’d on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982); Tschiggfrie Properties, Ltd., 368 NLRB No. 120, 128 (2019). The Wright Line standard is ultimately a test of causation and motivation – specifically, was the adverse employment action caused by a prohibited animus toward concerted protected activity?
Under Wright Line, there must be specific animus and proof that the protected activity “was a motivating factor” in the employer’s decision. Tschiggfrie Properties, Ltd., 368 NLRB No. 120, 125-26 (2019) (“[E]vidence of the Respondent’s general hostility toward the Union is not sufficient, on its own, to prove discriminatory motivation”). To prove an adverse action was “motivated” by the employee’s union activity, the National Labor Relations Board considers both direct and circumstantial evidence. NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013). The burden of proving animus is not “invariably sustain[ed] by producing . . . any evidence of the employer’s animus or hostility toward union or other protected activity. Instead, the evidence must be sufficient to establish that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employee.” Id. In addition, the “fact that the employer opposed the union drive does not itself show animus and here there is no showing that it engaged in any activities at that time that otherwise were in violation of the Act.” Ppg Indus., Inc., 337 NLRB 1247, 1248 (2002).
In short, you can have negative opinions about unionization – you can (with restrictions) express those opinions to your employees. However, you cannot take adverse action against an employee or group of employees because of their opinions or union actions. You may (again, with restrictions) take adverse action against an employee for unrelated actions, such as a breach of their employment contract or employer policies.
If you have employees considering unionization or wish to take adverse action against an employee involved in a Union, contact our Labor Law specialists to help you navigate this complex law.
Lydia Ann Owens Rytting
Lydia Rytting is an associate in the Firm’s Employment and Labor Law and Litigation Sections. Her practice involves assisting employers with a range of litigation issues, specifically including employer compliance with the National Labor Relations Act. Ms. Rytting works in all aspects of commercial litigation, including contract disputes, business torts, and other complex commercial claims.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers. All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed.