Court Holds NLRB Must Tie Employee’s Discharge to Anti-Union Animus

The U.S. Court of Appeals for the Eighth Circuit held that the National Labor Relations Board misapplied the standard for determining when an employee’s discharge violates the National Labor Relations Act because of an employer’s anti-union animus. Under the Act, an employer may not discharge an employee for activities protected under the Act, but may discharge workers for any other activities unrelated to the Act. Under the Wright Line analysis, the Board’s General Counsel must first show that an employee’s protected conduct was a substantial or motivating factor in the employer’s decision. If the General Counsel makes this showing, then the burden shifts to the employer to show that it would have taken the same action regardless of the protected activity.

In Tschiggfrie Properties, Ltd v. NLRB, the Eighth Circuit found that the Board misapplied Wright Line when it held that the General Counsel does not have to establish a nexus between the anti-union animus and the discharge. The case was remanded back to the Board to reconsider whether the General Counsel could make the appropriate showing.

Of further interest, the Eighth Circuit also declined to adopt the NLRB’s per se rule that questioning a co-worker in preparation for the unfair labor practice (ULP) hearing concerning the employee’s discharge was unlawfully coercive, where specific safeguards were not met. In Johnny’s Poultry Co., the Board held that, in interviewing an employee in preparation for an ULP hearing, an employer must provide the employee “with assurances against reprisals” and “inform him that his participation … was voluntary,” and the failure to do so automatically rendered the interview unlawful. The Eighth Circuit noted that it, and other circuit courts, have rejected the Board’s per se rule, and instead will look at the totality of the circumstances to determine if the interview is coercive.