August 28, 2023

The National Labor Relations Board (NLRB) issued a decision in Intertape Polymer Corp. explaining that the NLRB’s 2019 decision in Tschiggfrie Properties, Ltd., did not add to or change the General Counsel’s burden to prove violations of the National Labor Relations Act (NLRA) under the longstanding Wright Line test. Under Wright Line, the elements required to sustain the General Counsel’s initial burden are: (1) union or other protected activity by the employee; (2) employer knowledge of that activity; and (3) animus against union or other protected activity on the part of the employer. In its decision in Intertape, the NLRB reaffirmed that, in applying Wright Line, the NLRB looks to whether the evidence in the record as a whole supports a reasonable inference that protected activity was a motivating factor in a challenged employment action. With regard to the General Counsel’s burden to prove animus specifically, the decision clarifies that either direct or circumstantial evidence can support a finding of animus, and that there is no requirement that the demonstrated animus is specifically directed toward the employee’s own protected activity or even the particular employee against whom the employer has taken action.

© 2024 Signatory Wall and Ceiling Contractors Alliance (SWACCA). All rights reserved.