188
The Board has also historically relied on unalleged noncoercive statements of opposition
to unions or unionization as evidence of animus and an unlawful motive. However, in United Site
Services of California, Inc., 369 NLRB No. 137 (2020), the Board overruled such decisions and
agreed with those reviewing courts that have rejected reliance on such noncoercive statements.
The Board held that Section 8(c) of the Act (the so-called “free speech” provision) “precludes
reliance on statements of opinion that neither threaten nor promise as evidence in support of any
unfair labor practice finding.” See slip op. at 14 n. 68. See also Truck Drivers Local 100 (Beta
Productions LLC), 370 NLRB No. 36, slip op. at 2–3 (2020); and District Hospital Partners,
L.P., 370 NLRB No. 118, slip op. at 1 n. 1 (2021).
Events over 6 months before the alleged unlawful conduct (background evidence). It is
well established that evidence of events occurring more than 6 months before the charge may be
considered as background to shed light on a respondent’s motivation for conduct within the
Section 10(b) limitations period. See, e.g., CSC Holdings, LLC, 365 NLRB No. 68, slip op. at 4
(2017); Wilmington Fabricators, 332 NLRB 57 n. 6 (2000); and Douglas Aircraft Co., 307
NLRB 536 n. 2 (1992), enfd. 66 F.3d 336 (9th Cir. 1995). See also § 3–620, above, regarding
admission of evidence concerning events outside the 10(b) period.
Events after the alleged unlawful conduct. Events occurring after the alleged
discriminatory conduct may be relevant to whether that conduct was motivated by animus. See
Con-Way Freight, Inc., 366 NLRB No. 183, slip op. at 3 n. 10 (2018) (employer’s post-discharge
violations were relevant to whether the discharge was motivated by animus); and Dresser-Rand
Co., 362 NLRB 1100 (2015) (employer’s post-lockout violations were relevant to whether the
lockout was unlawfully motivated), enf. denied in relevant part 838 F.3d 512 (5th Cir. 2016).
Circumstantial evidence. Animus or discriminatory motive may be inferred from
circumstantial evidence. See Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 8
(2019) (clarifying General Counsel’s Wright Line burden where motive is at issue), and cases
cited there. See also East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at 1 n. 7 (2018),
citing Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) (“In most cases only
circumstantial evidence of motive is likely to be available.”); and CC1 Limited Partnership v.
NLRB, 898 F.3d 26, 32–33 (D.C. Cir. 2018). Frequently cited examples include the timing of the
alleged unlawful employment action in relation to the union or protected employee conduct, the
respondent’s shifting, false, or exaggerated reasons offered for the action, the respondent’s
failure to conduct a meaningful investigation, and the respondent’s disparate treatment of the
employee. See, e.g., Constellium Rolled Products Ravenswood, LLC, 371 NLRB No. 16, slip
op. at 4 (2021); BS&B Safety Systems, LLC, 370 NLRB No. 90, slip op. at 1–2 (2021); Wendt
Corp., 369 NLRB No. 135, slip op. at 4 (2020); Mondelez Global, LLC, 369 NLRB No. 46, slip
op. at 2-3 (2020), enfd. 5 F.4th 759 (7th Cir. 2021); and Shamrock Foods Co., 366 NLRB No.
117, slip op. at 27–28 (2018), enfd. per curiam 779 Fed. Appx. 752 (D.C. Cir. July 12, 2019).
Employee’s subjective belief or uncertainty. With respect to the ultimate issue of whether
a respondent’s alleged actions against an employee were discriminatory, it is irrelevant whether
the employee personally believes that he/she was discriminated against because of union or
protected concerted activity. Professional Medical Transport, Inc., 362 NLRB 144, 152 n. 25
(2015). See also Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 16 n. 23 (2018)
(finding that “nothing is to be gleaned” from the fact that the alleged discriminatee/ charging party
in the unfair labor practice case also filed a parallel charge against the employer alleging disability
discrimination), enfd. 976 F.3d 30 (D.C. Cir. Oct. 6, 2020); and Staffing Network Holdings, LLC,
362 NLRB 67, 73 (2015) (rejecting the employer’s argument that the alleged discriminatee/
charging party should be discredited because she also filed ancestry and age discrimination
charges against the employer over her discharge), enfd. 815 F.3d 296 (7th Cir. 2016).