Michael C. Duff

No matter how clear a violation of labor law seems to be, it has to be proven within an administrative agency and upheld, if challenged, by a court. I litigated cases at the National Labor Relations Board (NLRB) for a decade and know full well that, despite how obvious unfair labor practices by Amazon or Starbucks may appear on the surface, they mean little if they cannot be proved before a federal Administrative Law Judge. Within the domain of federal labor law, theories of justice writ large must be fit to rules of evidence and concepts of causation. The recent article, Wrong Line: Proposing a New Test For Discrimination Under The National Labor Relations Act, written by NLRB agents Joshua D. Rosenberg Daneri and Paul A. Thomas (outside their affiliation with the agency) is exactly the kind of work that can help readers explore this fit.

In the kind of union organizing drive that observers are usually interested in, a union arrives on the scene and employees supporting the union are fired. Obviously, this kind of situation has nearly limitless variations. But common to most of them is the employer’s defense: that its decision to fire the employees was not motivated by anti-union considerations. These cases are the “bread and butter” of the NLRB, so how they get litigated is extremely important. The authors argue that the NLRB’s 1980 Wright Line decision, which established how judges are to consider evidence about employer motivation in unlawful termination cases, has for decades gotten these bread and butter “causation” cases wrong. In their view the NLRB should (and is legally able) to revisit Wright Line.

The way beginning labor specialists learn Wright Line is simple. One might even call it elementary. First, we must know what the National Labor Relations Act (NLRA) says (in relevant part) about firing employees who support a union: it is an “unfair labor practice” for an employer to act against an employee “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization….” Wright Line in turn says that to prove that an employer violated this provision the NLRB must show that: an employee engaged in protected activity; the employer knew about the activity; and the employer “harbored animus toward both the Union and union activists.” Having established these elements of a “prima facie case”—and this is the important part—the burden shifts to the employer to show it would have taken the same action against the employee despite the known union activities.

Daneri and Thomas help us to recall that, in practical terms, the facially innocuous Wright Line test means that many employers found to have engaged in unlawful anti-union discrimination escape from cases without any legal finding of having violated the NLRA. In its greatest contribution to current scholarly dialogue, Wrong Line reminds readers that the Supreme Court, in its 1983 Transportation Management opinion, upheld the Wright Line test while cautioning that the NLRB could pursue “mixed motive” discrimination in employment differently. To the objecting employer it observed, “[w]e also assume that the Board might have considered a showing by the employer that the adverse action would have occurred in any event as not obviating a violation adjudication, but as going only to the permissible remedy, in which event the burden of proof could surely have been put on the employer.”

In other words, in very close cases in which an employer discriminates at least in part  “to encourage or discourage membership in any labor organization,” the NLRB could find a violation of the NLRA. So, if union organizer Jada is accused of stealing money from the cash register during an organizing drive and the employer pounces on the opportunity to fire her, the result of the case is not necessarily that Jada will lose her job or that the union will lose a top organizer. Rather, that is a question of appropriate remedy, following a finding that the employer has violated the NLRA. Suddenly, an employer who gets rid of the union supporter or organizer and repeatedly wins cases despite its anti-union conduct must now defend its actions as a wrongdoer with unclean hands—and even if the Board does not order that Jada be reinstated, it might order other remedies. This practitioner’s insight is one of the most important observations in all of labor law. That determined anti-union employers can repeatedly use Wright Line to get away with firing workers because of their union activity leaves labor law nearly meaningless.

I also appreciate very much the authors’ focus on what a legal standard like Wright Line—which often lets employers completely off the hook even when part of their motivation for firing a worker is anti-union animus—does to local regional NLRB offices tasked with investigating labor law violations. Often employers present facially plausible defenses for firing employees in dual motivation discharge scenarios. The regional office is under constant and relentless pressure to dispose of cases. This was as true in the era of Clinton/Gore, when I practiced, as in the era of Trump. (One should be under no delusions about the bipartisan, decades-long demolition of labor law). But imagine a regional office that had already found a violation of labor law as opposed to one facing a tough Wright Line defense that might completely scuttle a case later at a formal trial. Which regional office do you imagine is most likely to bore in harder on a case’s preliminary investigation? My money is on the former.

Elsewhere in the article there are statements about causation with which I do not necessarily agree. But those trees should not obscure the forest—Wright Line can and should be changed, and the Supreme Court has already endorsed the idea. Of course, the federal courts have changed since Wright Line, and nobody should underestimate the likelihood of employer and judicial resistance to change. However, this article is a valuable doorway to the debates to come.