Labor Bill Raises the Bar for Employees to Prove Retaliation During Union Activity

This bill, titled the “Protection on the Picket Line Act,” takes a major swing at the rules governing unfair labor practices under the National Labor Relations Act (NLRA). Specifically, it makes it significantly harder for an employee to successfully claim that they were disciplined by their employer in retaliation for engaging in protected union activity, like picketing or organizing. The bill essentially flips the script on the burden of proof, requiring the General Counsel—the folks who investigate and prosecute these claims—to clear five highly specific hurdles to win a case. If you’ve ever been involved in organizing or a labor dispute, this is a huge change to the playing field.

The New Gauntlet for Retaliation Claims

Currently, if an employee is disciplined right after engaging in protected activity (like walking a picket line or attending an organizing meeting), the employer often has the burden of proving the discipline wasn't retaliatory. This bill changes that completely. Under Section 2, the General Counsel must now prove five things to show an unfair labor practice occurred. It’s not enough to show you were on the picket line and then fired; the Counsel must prove the employer knew about the protected activity, showed hostility or prejudice against it, and that there was a direct connection between the activity and the discipline.

But here’s the real kicker: the Counsel must also prove the employer "fails to prove that it would have taken the exact same disciplinary action even if the protected activity had not occurred." This means the employer can simply assert a non-retaliatory reason—say, claiming the employee was five minutes late to the line, or used a slightly inappropriate word—and the burden then shifts back to the General Counsel to disprove that the employer would have taken the same action anyway. For the average worker challenging their firing, this is an incredibly high evidentiary bar to clear.

What This Means for the Everyday Worker

Imagine you’re a warehouse worker, and your team is organizing for better safety conditions. You spend your lunch break handing out flyers—a clear Section 7 protected activity. The next day, your supervisor disciplines you for a minor uniform infraction that they’ve ignored for months. Under the current system, that timing looks suspicious, and the employer would have a tough time proving it wasn't retaliation. Under this new bill, however, your case becomes much tougher.

To win, the General Counsel would have to prove the employer was actively hostile to the organizing effort and prove that the employer had no legitimate, non-retaliatory reason for citing the uniform violation—or, more accurately, that the employer couldn't prove they would have disciplined you for the uniform infraction even if you hadn't been organizing. This gives employers a massive shield. If they can articulate any plausible, non-retaliatory reason for the discipline, even if it feels pretextual, the employee’s case likely collapses. For employees engaged in organizing, this bill makes challenging disciplinary action a much riskier proposition.

The Power Shift

The stated goal of the bill is to protect employers from unfair labor practice findings when they discipline employees for genuine misconduct (like harassment or abuse) that might occur during protected activity. However, the mechanism used—this five-part, high-burden test—effectively shifts the balance of power heavily toward the employer. By requiring proof of employer hostility and a direct link, and by giving the employer an easy out with the “same action” defense, the legislation creates a framework where it is extremely difficult to successfully prosecute retaliation claims related to protected concerted activity. This could chill organizing efforts, as workers may fear that any minor infraction committed while engaged in union activity could be used as a bulletproof reason for discipline.