September 18, 2023

Why You Should Tell Supervisors, Managers About A New NLRB Decision

On August 28, the National Labor Relations Board (NLRB) issued a decision that clarifies the standard by which the NLRB’s general counsel can satisfy the initial burden of persuasion in cases involving mixed motives for adverse employment actions. (The NLRB’s general counsel is independent from the NLRB and is responsible for investigating and prosecuting unfair labor practice cases.)

The Society for Human Resource Management (SHRM) has advised that employers inform their managers and supervisors about the decision since it could make companies more vulnerable to unfair labor practice charges.

That is because the new decision makes it clear the NLRB general counsel can meet its burden of proof through evidence of an employer’s general anti-union animus even if it is not directed at the specific employee’s protected activity. Specifically, by following this decision, the NLRB general counsel may use isolated anti-union comments or actions to satisfy the initial burden to prove a labor law violation.

The NLRB also noted several times in its ruling that the board is able to use circumstantial evidence to support “an inference of animus and a causal connection.” SHRM concluded that this decision means the NLRB may have leeway “to find more violations, particularly in gray areas.”

Read SHRM’s full article here.

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