On August 15, 2023, the National Labor Relations Board (“NLRB” or “Board”) proved it could revisit the factual record in a case and agreed that an employer had NOT discriminated against an employee for her union activity. Dispelling what many employers have claimed are consistent findings against employers’ interests, the Board ruled in Art Directors Guild, Local 800 IATSE, 372 NLRB No. 123 (August 15, 2023) that the Administrative Law Judge was wrong when he concluded the employer’s reasons for terminating a union organizer were a pretext for discrimination. Of course, the employer happened to be a labor union.

With the vigor the Board usually reserves for deconstructing employer defenses, the Agency carefully buttressed the Art Director Guild’s performance concerns with accountant Nicole Oeuvray. The Board utterly rejected the Judge’s explicit finding that Oeuvray had a “spotless performance record…before her overt March 2019 union organizing activities.” In contrast, it found that Oevray’s performance failures “preceded [her] union activities.” Accordingly, she was lawfully terminated from employment.

Management commentators will now have to reconsider months of criticism of the NLRB’s unwillingness to consider their defenses that a union activist was discharged for legitimate business reasons. The Agency has conclusively established that it will dig deep into the record and even overturn the factual conclusions of the Administrative Law Judge to support an employer that has meted out performance-based discipline (just kidding). We can all look forward to cases in which the Board will apply this approach to an employer other than a labor union…when pigs fly.