Yesterday, September 24th, the National Labor Relations Board (the “Board”) issued a decision establishing the test to be used in determining when an employee’s union-related activity goes too far to lose Section 7 protection, such that the termination of their employment for such conduct does not violate the National Labor Relations Act (“NLRA”).
The Board re-adopted what is known as the Wright Line test and held that the General Counsel must initially show that:
- the employee engaged in activity protected by Section 7 of the NLRA,
- the employer knew of that activity, and
- the employer had animus against the Section 7 activity.
If that is established, then the termination of the employee’s employment will violate the NLRA unless the employer can show that it would have taken the same action even in the absence of the Section 7 activity.
In issuing this decision, the Board overturned its prior standard, which used different tests depending on the setting of the conduct.
For many employers, including non-union employers, the decision is a reminder that inappropriate conduct by an employee may be protected under the NLRA if it involves union activity, or other “concerted activity” such as complaining about workplace conditions, and employers should consult legal counsel before taking adverse action against an employee who is potentially engaging in activity protected by the NLRA.
