All employees have a right to engage in concerted activity under the National Labor Relations Act (NLRA)—often called “protected concerted activity (PCA)”—meaning that even in a non-union environment, an employer cannot retaliate when two or more employees are discussing the terms and conditions of their employment. While employees have PCA, the protection may be lost if the employee engages in “egregious behavior.” The term “egregious” is very vague, and National Labor Relations Board (NLRB) decisions have not been particularly helpful. In fact, the Board has found in many cases that employees’ conduct fell short of egregious behavior even when the behavior could be classified as discriminatory.
Take the case of Erik Williamson, who was a striker. During the strike, Williamson made an obscene gesture towards a female non-striker by grabbing his crotch in her direction. You know that this conduct violates your zero-tolerance harassment policy. Shouldn’t you have the right to terminate an employee for violating company policy—particularly when the policy is there to comply with the Equal Employment Opportunity Commission’s (EEOC) regulations on sexual harassment?
The employer in this case was probably shocked when the NLRB decided that Williamson’s behavior—while inappropriate—was not egregious enough for Williamson to lose his PCA status. As such, the employer violated the NLRA when it terminated Williamson’s employment and ordered that Williamson be reinstated with full...
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