Employers Face Renewed Restrictions Under The NRLA On Disciplining Employees For Outburst
As most employers are aware and their employee handbooks hopefully reflect, sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA) protect the rights of employees to engage in “protected concerted activity.” The National Labor Relations Board (NLRB or Board) has defined this term as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection. Examples consist of discussions with colleagues or workplace executives about pay, workplace safety and union concerns. However, what happens if these talks advance to the next level, culminating in expletive-laced rants or wrongful conduct?
Following its recent decision in Lion Elastomers, the NLRB has now returned to traditional standards to determine if employee conduct is protected concerted activity. The NLRB thus overruled the earlier more employer-friendly standard under General Motors, which made it easier for employers to sanction misconduct that takes place as part of protected activity. In overturning this Wright Line Standard, the Board noted that labor disputes are often heated, as the Supreme Court has even recognized. It reaffirmed the principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, in order to safeguard their statutory rights.
Thus, the NLRB returned to the following setting-specific standards in the way of three main tests that had been prevalent prior to 2020.
1. Atlantic Steel test - governs employee behavior toward management
taking into account four factor:
· The place of the discussion;
· The subject matter of the discussion;
· The nature of the outburst; and
· Whether the outburst was, in any way, provoked by an employer’s
unfair labor practice.
2. Totality-of-the-circumstances test – governs social media posts and
situations involving conversations among employees at work;
3. Clear Pine Mouldings standard – governs picket-line conduct
What is the quick lesson here for management? Employers going forward should not be so rash in disciplining employee conduct, no matter how offensive or odious it may seem. Corrections or punishment could break labor laws if any type of NLRA-protected activity occurred. The above tests should be carefully applied in analyzing employee behavior – what setting was the employee in and was the conduct related to terms and conditions of employment? However, employers should note that the NLRA standards listed above are not triggered if the employee outbursts are of a harassing or discriminatory nature or consist of non-protected offensive/abusive behavior.
Keep in mind, the ARLB (Agricultural Labor Relations Board) often borrows its decisions and precedence from the NLRB. If you have any questions about the NLRA, ALRB or if you would like to make sure your employee handbooks are up to date, please contact the Rosasco Law Group APC.
