Thursday, August 8, 2019

Electrolux Home Products: Pretext and Labor Law Violations

A recent decision by the National Labor Relations Board in a case involving Electrolux Home Products correctly recognizes that even if an employer lied about why it fired someone, that does not necessarily mean that it fired the person because of anti-union animus in violation of the National Labor Relations Act. The dissent, by contrast, mistakenly contends that an employer violates the NLRA per se merely by lying about its reason for taking the action.

To be sure, evidence that an employer lied about why it fired an employee is some evidence that the employee was fired because of anti-union animus. But as the majority noted: "It is possible that the true reason might be a characteristic protected under another statute (such as the employee's race, gender, religion, or disability), or it could be some other factor unprotected by the Act or any other law, which would be a permissible basis for action under the at-will employment doctrine." Thus, it is not enough to merely show that an employee was not fired for the reason asserted by the employer; rather, the evidence must also show that the employee was fired for a reason prohibited by the NLRA.

In this case, there was evidence that the charging party was told to "shut up" by a manager at a meeting that the employer held seven months before the charging party's termination, to make its case against unionization. In the majority's view, this statement, while rude, was insufficient to establish a violation, even when combined with the pretext evidence. Reasonable minds might disagree with how the majority weighed this evidence, but at bottom, the majority correctly explained the limits of pretext evidence.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.