Board Clarifies 2019 Decision on 'Wright Line' Burden

Today, the Board issued a decision in Intertape Polymer Corp. explaining that the Board’s 2019 decision in Tschiggfrie Properties, Ltd., did not add to or change the General Counsel’s burden under the longstanding Wright Line test. While the Tschiggfrie decision purported to “clarify” the Wright Line test, that clarification has caused unnecessary confusion and has, at times, been interpreted as modifying or heightening the General Counsel’s Wright Line burden.  In Intertape, the Board reaffirmed that the General Counsel’s burden under Wright Line remains the same as it has been throughout decades of Board jurisprudence.

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 Intertape, the Board reaffirmed that, in applying Wright Line, the Board 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.

“The Wright Line standard is the Board’s foundational framework for assessing whether workers’ rights have been violated.  It is important that the Board provide certainty to all parties about how the elements of this test are interpreted and applied,” said Chairman Lauren McFerran. “In Tschiggfrie, the Board unnecessarily tried to clarify the Wright Line standard, but ended up doing more harm than good. Because the decision has caused significant confusion for parties before the Board, we take this opportunity to make clear that this longstanding bedrock of Board law remains unchanged.”

Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.