National Labor Relations Act Developments

National Labor Relations Act Developments

On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision requiring employers to look critically at the context of abusive conduct before disciplining an employee thereby making it more difficult for employers to discipline or terminate employees who have engaged in this behavior. While the setting in which the conduct occurred was taken into consideration during the Obama presidential administration, the NLRB during the Trump presidential administration changed the rules to allow employee discipline for misconduct regardless of the setting so long as the employer could establish that the discipline would have been the same had the misconduct occurred in the course of a protected concerted labor rights activity (i.e., making profane or racist/sexist statements or engaging in harassing/threatening behavior). Now we are seeing the NLRB under the Biden presidential administration returning to the use of setting-specific tests that vary based on the particular context the employee’s behavior occurred in.

Separately, the U.S. Supreme Court recently ruled in June 2023 that an employer could bring a state tort property damage lawsuit against a striking union for intentional destruction of employer property. This expanded the previous limitation of only being able to bring a federal unfair labor practice charge against the union via the NLRB channel.