NLRB clarifies the General Counsel's Wright Line burden

In Intertape Polymer Corp (NLRB 08/25/2023) [PDF] the NLRB cleared up some confusion that was caused by Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019).

The Board said:

"In Tschiggfrie, the Board majority, then-Member McFerran concurring in the result, sought to clarify the General Counsel’s burden under Wright Line in response to criticism from the United States Court of Appeals for the Eighth Circuit and what it described as confusion in a number of the Board’s decisions. As discussed below, however, the majority’s clarification was unnecessary and subject to misinterpretation. In our decision today, we explain that the Board in Tschiggfrie did not add to or change the General Counsel’s burden under Wright Line. Rather, the Board merely reaffirmed the principle, already embedded in the Wright Line framework, that the General Counsel is required to establish that protected activity was a “motivating factor” in the adverse employment action alleged to be unlawful. To the extent Tschiggfrie has been interpreted as modifying or heightening the General Counsel’s Wright Line burden, we reject that interpretation, and we reaffirm that the General Counsel’s burden under Wright Line remains the same as it has been throughout decades of Board jurisprudence."

The problem was that Tschiggfrie had suggested that the General Counsel’s burden was to show more than a reasonable inference that animus toward union or other protected activity was a motivating factor in an employer’s decision to take adverse action against an employee, and the GC had to have evidence of “particularized” animus toward the employee’s own protected activity. The Board has now clarified that a “particularized” animus toward the employee’s own protected activity is not part of the GC's burden.