Labor Relations Update

Tag Archives: unprotected activity

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity

By Joshua Fox, Mark Theodore and Scott Tan on Posted in Uncategorized
As we have often discussed, there is a fine line between protected and unprotected activity.  Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers. On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of … Continue Reading

NLRB: Employee’s Profanity and Threatening Comments Insufficient to Forfeit Protections of the Act

By Mark Theodore and Scott Tan on Posted in NLRA, NLRB
In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.”  However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment. Plant … Continue Reading

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Strikes
This summer has been punctuated by walkouts.  We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over … Continue Reading

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich and Joshua Fox on Posted in Advice, NLRA, NLRB, Section 8(b)(1)(A)
Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public. It has been long held by the Supreme … Continue Reading

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading

NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected

By Mark Theodore on Posted in Due Process, Healthcare Employers, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Workplace Investigations
A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.”  We noted, for instance, that the Board recently held that an employee’s use of derogatory gender-based comments  may not not render a protected outburst “unprotected,” even if the EEOC and the myriad State … Continue Reading

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

By Mark Theodore on Posted in Advice, Facebook, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies
Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review … Continue Reading

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
An issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA.  We have seen that maliciously false statements made to third parties are unprotected.  But what about when employees disagree with managerial control of the operations?  How far can they press their claims?  When it comes to … Continue Reading

Update: NLRB Upholds Termination For Facebook Posting, But Nails Employer For Unrelated Handbook Policy

By Mark Theodore on Posted in Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media, Unfair Labor Practices
The NLRB has received a lot of attention for its actions the last couple years.  One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings.  More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see, … Continue Reading

NLRB: Employer’s Harassment Investigation Lawful, But Not Resulting Discipline

By Mark Theodore on Posted in Decertification elections, Handbook, Leaving work without permission, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
As the end of its fiscal year approaches (September 30), the NLRB pushes more decisions out than it has in the last several weeks.  Not a whole lot are of note, honestly.  There seems to be an uptick of default judgments being issued,-findings of violations of the NLRA without a formal hearing,–but it is difficult … Continue Reading
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