Monday, July 27, 2020

NLRB revisits its "f*@king" precedent

The National Labor Relations Act protects concerted activity and union organizing activity. Sometimes, employees are engaged in protected activity while also engaged in the kind of misconduct that might ordinarily result in termination. Like, maybe an employee posted on Facebook to "Vote YES for the UNION" while also calling his boss a "NASTY MOTHER FUCKER." Believe it or not, there's some precedent holding that such an employee is still protected by the NLRA. 

The National Labor Relations Board recently issued a new opinion in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), and corresponding news release: NLRB Modifies Sta
Not official use.

Under the old precedent, the NLRB applied different standards for different circumstances (encounters with management, exchanges with employees and social media posts, and picket line conduct). Under this new decision, the NLRB applies the Wright Line standard in all "cases involving offensive or abusive conduct in the course of otherwise-protected activity."
 
The decision includes a nice summary of the Wright Line standard:
[T]he General Counsel must initially
 show that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity . . . . Once the General Counsel makes his initial case, the employer will be found to have violated the Act unless it meets its defense burden to prove that it would have taken the same action even in the absence of the Section 7 activity.
This will come as welcome news to employers, who were looking for consistency and some restoration of "the line" that they felt employees were crossing (and yet still receiving NRLA protection). 

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