The National Labor Relations Board recently issued an opinion in Lion Elastomers, LLC II, reinstating prior case law that provides greater protections for employees who engage in disruptive behavior in connection with protected activity under the National Labor Relations Act (“NLRA”)—thereby making it harder for employers to issue discipline for such behavior.
Although not every employer operates under a union contract, the NLRA’s protections extend to all non-supervisory employees in the workplace, whether they belong to a union or not (managers can also be covered by the NLRA in limited circumstances). Critically, Section 7 of the NLRA grants employees the right to engage in concerted protected activity to obtain better terms and conditions of employment, form a union, collectively bargain, or refrain from participating in such activities. Employers are specifically prohibited from taking adverse action (think: discipline, threats, termination) against employees who seek to assert their Section 7 rights. However, some employers have unwittingly found themselves on the receiving end of an unfair labor practices charge simply because they took adverse action against an employee who exhibited abusive, offensive conduct while engaging in Section 7 protected activity.
The Board’s Lion Elastomers, LLC II decision restores precedent that requires a context-specific analysis prior to discipline, which may significantly limit the right of employers to weed out unruly, abusive...
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