The NLRB’s General Counsel is urging the Board to eliminate a requirement that there must be some adverse employment action undertaken to prove that an employer illegally discriminated against an employee based on their union activity.
Why it matters: Removing such a requirement would significantly lower the threshold for proving unlawful anti-union bias and could result in unfair labor practice charges for anything from denial of transfers to promotions.
Background: Based on a Board ruling in 2015 (Bellagio), to establish an unfair labor practice for unlawful bias against an employee for union activity or interference with their rights to organize, the employee or union must show that the employer took an adverse employment action against the employee, such as termination or discipline.
General Counsel Abruzzo seeks to do away with this requirement, arguing in a case currently before the Board that longstanding Board law prior to Bellagio does not contemplate requiring that the employer took some action that adversely impacted the employee. Instead, Abruzzo urges the Board to establish that any employer action that “potentially” interferes with the employee’s rights to protected concerted activity – whether or not it adversely affected the employee – is unlawful.
Promotions as unfair labor practices? Abruzzo’s argument goes as far as to say that “...even ostensibly benevolent acts – like promotions – can chill protected activity, or encourage or discourage union membership, and thus [be unlawful].”
No limit to potential unfair labor practices: Should the Board adopt Abruzzo’s preferred approach, the floodgates could be opened to a much wider swath of potential unfair labor practice charges based on employer actions that in no way adversely affect employees – there only needs to be “potential” interference with an employee’s rights under federal labor law. Given the current Board’s and General Counsel Abruzzo’s extremely broad view of what could “potentially” interfere with employee rights, that leaves the door open to almost any type of employer action being potentially unlawful.
Outlook: Abruzzo’s argument comes as the Supreme Court is similarly currently considering what exactly constitutes an “adverse employment action” under Title VII (federal anti-discrimination law). The Court could rule that transfers or denials of same are “adverse” actions under Title VII. If so, employers could soon face expanded liability for (historically) non-adverse employment actions on multiple fronts.
