Can Gemini Pro 3 Figure Out NLRB Law?
Google's newest model is really good.
Last week, Google released the newest version of its Gemini model, Gemini Pro 3. To test the model, I gave it the most recent 100 NLRB cases that use the phrase “Wright Line” and then asked it to read the cases and provide an exhaustive summary of the Wright Line framework.
After several minutes of “thinking,” the model provided the below answer, which is really good.
Based on the Board decisions provided in the file, here is an exhaustive explanation of the Wright Line framework.
Overview
The Wright Line framework is a causation test used by the National Labor Relations Board (NLRB) to determine whether an employer has violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by taking adverse employment action (such as discharge, discipline, layoff, or refusal to hire) against an employee because of their union or protected concerted activity. It is essentially a “dual-motive” analysis designed to distinguish between unlawful discrimination and legitimate management actions.
The framework was established in Wright Line, 251 NLRB 1083 (1980), and approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
The Two-Step Burden-Shifting Framework
The analysis proceeds in two distinct steps involving shifting burdens of proof.
Step 1: The General Counsel’s Initial Burden (The Prima Facie Case)
The General Counsel (the prosecutor for the NLRB) bears the initial burden of proving that an employee’s protected conduct was a “motivating factor” in the employer’s adverse decision. To sustain this burden, the General Counsel must establish three elements by a preponderance of the evidence:
Protected Activity: The employee engaged in union activity or other protected concerted activity (e.g., signing authorization cards, filing grievances, speaking to coworkers about working conditions, serving on an organizing committee).
Employer Knowledge: The employer knew of the employee’s protected activity.
Direct Knowledge: The employer observed the activity or was told about it.
Inferred Knowledge: Knowledge can sometimes be inferred from the circumstances, such as the “small plant doctrine” (though not explicitly detailed in every case, the general principle allows inference in small settings), or from the visibility of the activity (e.g., wearing union pins, as seen in Starbucks Corp. and Amentum Services).
Animus (Unlawful Motivation): The employer harbored animus (hostility) against the protected activity, establishing a causal link between the activity and the adverse action.
Animus is often the most litigated element. It can be proven by direct evidence (e.g., anti-union statements, threats) or circumstantial evidence.
Evidence Used to Infer Animus/Causation:
The decisions provided highlight several key evidentiary factors used to infer unlawful motivation:
Suspicious Timing: Taking adverse action shortly after learning of protected activity is a primary indicator of animus.
Example: In Amentum Services, the employer changed a schedule shortly after an employee prevailed in a grievance. In New York Paving, layoffs occurred immediately after a union grievance was filed regarding crew sizes.
Disparate Treatment: Treating union supporters more harshly than non-supporters for similar infractions.
Example: In Starbucks Corp., the Board found the employer “more strictly enforced” rules (like dress code or time-and-attendance) against union supporters than it had historically done for others.
Departure from Past Practice: Implementing new rules or enforcing dormant ones in response to union activity.
Example: In New York Paving, the employer deviated from its historical practice of keeping a larger crew during the winter, choosing instead to lay off nearly the entire unit. In Starbucks Corp., the “level setting” (sudden strict enforcement of previously lax rules) was found to be a departure indicating animus.
Shifting, False, or Exaggerated Reasons: If an employer provides reasons for the discipline that are later proven false, changed at the hearing, or unsupported by facts, this suggests the stated reason is a pretext.
Example: In Amentum Services, the employer’s claim that a schedule change was for coverage was deemed pretextual because they had never required such coverage in the past.
Failure to Conduct a Meaningful Investigation: Disciplining an employee without asking for their side of the story or conducting a standard inquiry can evidence a discriminatory motive (referenced in BS&B Safety Systems).
Contemporaneous Unfair Labor Practices: Other violations occurring around the same time (e.g., threats, interrogation, surveillance) serve as background evidence of the employer’s anti-union stance (noted in Starbucks Corp. and New York Paving).
Step 2: The Employer’s Defense Burden (The Affirmative Defense)
Once the General Counsel meets the initial burden, the burden of persuasion shifts to the employer. The employer must demonstrate, as an affirmative defense, that it would have taken the same action even in the absence of the protected activity.
Legitimate Justification: The employer must prove it had a legitimate business reason (e.g., misconduct, economic necessity, absenteeism) that was sufficient to justify the action at that time.
Consistency: The employer must show it has acted consistently with this justification in the past. If the employer claims an employee was fired for a rule violation, but evidence shows others broke the same rule without being fired, the defense fails.
Burden of Persuasion, Not Just Production: It is not enough for the employer to merely state a legitimate reason; they must prove they relied on it.
The Role of Pretext
A finding of pretext is fatal to the employer’s defense.
If the Board determines that the employer’s proffered reason for the adverse action is false, shifting, or not the actual reason relied upon (i.e., it is a “pretext”), the employer fails its defense by definition.
If the stated reason is false, the employer cannot prove it “would have taken the same action” for that reason.
Significance: As noted in New York Paving and Amentum Services, finding pretext leaves the General Counsel’s inference of unlawful motive intact and usually results in a finding of a violation without further analysis.
Application to Specific Contexts (Based on Provided Cases)
Mass Layoffs (New York Paving): The framework applies to decisions affecting groups. If a layoff deviates from past seasonal patterns (e.g., laying off more people than usual) and follows protected activity (e.g., a grievance), and the economic justification (e.g., “bundling” work) is unsupported by financial data, the layoff violates the Act.
“Level Setting” / Stricter Enforcement (Starbucks Corp.): An employer violates 8(a)(3) under Wright Line if it responds to union organizing by suddenly enforcing rules it previously ignored (e.g., dress codes, time and attendance policies). Even if the employee technically violated the rule, the change in enforcement driven by animus makes the discipline unlawful.
Schedule Changes (Amentum Services): Changing an employee’s schedule (e.g., from a “detached” flexible schedule to a rigid rotating shift) in retaliation for winning a grievance is unlawful if the employer cannot show it would have made the change regardless of the grievance.
Abusive Conduct (Lion Elastomers vs. General Motors): The provided text (specifically the Lion Elastomers decision) highlights a critical evolution in how Wright Line interacts with “abusive conduct” during protected activity:
Previously (General Motors): The Board had attempted to apply Wright Line to cases where employees used profanity or abusive language while engaging in Section 7 activity, allowing employers to defend based on the “manner” of the conduct.
Current Standard (Lion Elastomers): The Board overruled General Motors, holding that Wright Line is not the correct test for misconduct that occurs during protected activity (like a grievance meeting or picket line). Instead, “setting-specific standards” (like the Atlantic Steel test) apply to determine if the conduct was so egregious it lost the Act’s protection. Wright Line is reserved for cases where the motive (discipline for protected activity vs. discipline for unrelated misconduct) is factually disputed.
Summary of the Test
GC proves: Protected Activity + Knowledge + Animus = Motivating Factor.
Employer must prove: It would have taken the Same Action absent the protected activity.
Result: If the employer cannot prove this (or if the reason is pretextual), the employer violates the Act.
I am sharing this because I think it illustrates the kinds of things LLMs can do to assist in legal research, especially in this kind of summarizing of case law. There is a lot of skepticism of this technology, but it’s hard to see how it won’t become very heavy utilized in especially legal areas.