NLRB Restores Historic Protections for Workers Engaged in Section 7 Activity
May 25, 2023 by Beeson Tayer & BodineOn May 1, 2023, the NLRB issued a decision that reverses a horrible Trump Board decision from 2020 and restores traditional standards applicable to discipline or discharge of workers who engage in offensive or abusive conduct while engaging in Section 7 activity.
In Lion Elastomers, LLC, the Board overruled the Trump Board’s ruling in General Motors, LLC, which marked a sweeping change in Federal labor law by reversing four decades of unbroken precedent and adopting a burden-shifting test for determining whether an employer has lawfully disciplined or discharged an employee for offensive or abusive conduct while engaged in union or concerted activity. The General Motors standard essentially ignored the fact that employees were engaged in protected activities while committing the acts resulting in their discipline.
The Lion Elastomers ruling restores the Atlantic Steel Company precedent applicable to misconduct in interactions with management, the Pier Sixty, LLC, standards pertaining to conduct on social media and in workplace discussions among coworkers, and the Clear Pine Mouldings ruling governing conduct on picket lines.
Employee conduct toward management in the workplace: Under Atlantic Steel, whether an employee loses the protection of the NLRA due to offensive behavior toward management while engaged in Section 7 activity, the Board utilizes a four-factor test: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
Employee posts on social media and most conversations among employees in the workplace: Under Pier Sixty, LLC, when this type of conduct is undertaken as part of union or concerted activities, whether the conduct remains protected is evaluated under a totality of the circumstances test, considering all the relevant surrounding context.
Picket line misconduct: Under Clear Pine Mouldings, the test is whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket line conduct for which an employee has been disciplined.
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