In a 2-1 decision issued on August 2, 2019, the National Labor Relations Board (the “Board”) in Electrolux Home Products, Inc., 368 NLRB No. 34 (2019) reversed an Administrative Law Judge’s (“ALJ”) decision, and held that Electrolux’s discharge of a “known” union supporter employee did not violate the National Labor Relations Act (“NLRA” or “Act”), notwithstanding the Board finding that Electrolux’s stated justification for the discharge was pretextual.
The discharged employee at issue in the case, J’Vada Mason, was first hired by Electrolux in 2013 and was part of an assembly line team at a Memphis, Tennessee facility. As a result of her open assistance to the International Brotherhood of Electrical Workers, Local 474 (the “Union”) in both its 2015 organizing drive (which was unsuccessful), and its second, successful organizing drive in 2016, Mason was a known union supporter. She was seen distributing union cards, handing out union flyers, and wearing pro-union t-shirts. Moreover, during a meeting held by Electrolux in September 2016 during the organizing drive, Mason was told by two managers to “shut up” and “that she didn’t know what she was talking about” when she challenged a manager during a speech about the union.
Thereafter, on May 5, 2017, Mason was discharged by Electrolux for insubordination as a result of her failure to follow her supervisor’s directive to complete a routine task.
The ALJ Finds Mason’s Discharge Violated the Act
In applying Wright Line, 251 NLRB 1083 (1980), the ALJ found that Mason publicly and openly engaged in union activity, and as a result, Electrolux was aware of her engaging in union activity. The ALJ also found that Electrolux harbored anti-union animus towards Mason based on the fact that she was told to “shut up” by managers at the September 2016 meeting and that further anti-union animus could be inferred from Electrolux’s failure to provide any explanation as to why Mason was terminated for insubordination, where other employees in the past received lesser discipline for the same offense.
Accordingly, the ALJ found that: (1) the General Counsel established a prima facie case under Wright Line regarding the discharge; (2) that the burden of proof then shifted to Electrolux to show it would have taken the same action notwithstanding the union activity; and (3) that it failed to carry such burden. Thus, the ALJ held that Mason’s termination violated the Act.
The Board Reverses, Upholds the Discharge
Despite agreeing with the ALJ that Electrolux’s “proffered justification for discharging Mason instead of imposing lesser discipline was pretextual,” the Board held that the General Counsel “failed to satisfy his burden of proving that Mason’s union activity was a motivating factor in her discharge.”
Importantly, the Board declined to infer animus based on Mason’s confrontation with two managers during the September 2016 meeting for two reasons. First, because Electrolux was lawfully permitted to conduct such a meeting; and that while telling Mason to “shut up” may have been “rude,” it was not sufficient evidence to establish that Electrolux harbored anti-union animus. Second, the Board noted that the September 2016 meeting lacked a sufficient temporal nexus to Mason’s May 2017 discharge (8 months later) to serve as a basis upon which to infer unlawful motivation by Electrolux.
Though the Board acknowledged that there is “some precedential support for the proposition that pretext alone may satisfy the General Counsel’s burden of proof . . . We need not resolve this inconsistency here,” finding such precedent distinguishable from the instant case on the facts.
Thus, in reversing the ALJ, the Board found that the General Counsel failed to meet its Wright Line burden of proof, because it “failed to establish by a preponderance of the evidence that [Electrolux] was unlawfully motivated in discharging Mason.”
Member McFerran’s Dissent
In her dissent, Member McFerran argued that the Board’s decision “evinces a fundamental misinterpretation of the import of pretext within the Wright Line framework” which to her “seems to open the door for employers to lie to the Board and get away with it.” McFerran argued that longstanding Board precedent “would logically preclude any conclusion that [Electrolux] acted lawfully in discharging Mason,” because “[o]nce [Electrolux] decided to present only a false reason for its action, it forfeited its chance to establish that it acted for a lawful reason under the Act.”
Electrolux shows that the Board is divided on the appropriate amount of weight a finding that an employer’s justification for an adverse employment action is pretextual carries with regard to the General Counsel’s burden of proof under Wright Line. While the facts of Electrolux are somewhat unique, in future cases it appears the General Counsel will need to do more than merely establish pretext to prove an employer’s adverse employment action was motivated by discriminatory animus. Nevertheless, employers considering taking disciplinary action against a union member, especially one that is a known union supporter, should first consult with their labor lawyer.