Under the National Labor Relations Act (NLRA), a union member cannot be disciplined for forming or joining unions, bargaining collectively, or engaging in other activities for the purpose of collective bargaining, such as striking. But this protection does not immunize a union member from discipline for any type of inappropriate conduct while engaging in protected activity. The NLRB previously allowed union members significant leeway to engage in inappropriate conduct while exercising their protected rights, concluding that the NLRA’s protections “would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”

In line with this approach of affording leeway, various approaches were taken to determine whether an employee could be disciplined for certain conduct. These approaches varied depending on the circumstances in which the conduct occurred, in ascending order of leeway: (1) workplace discussions with management; (2) social media posts and coworker discussions; and (3) the picket line.

In a new decision, the NLRB concluded there was too much leeway being afforded, which “has largely swallowed employers’ concomitant right to maintain order, respect, and a workplace free from invidious discrimination.” The NLRB further noted that the activity protected by the NLRA can be accomplished without resorting to abusive conduct, and that nothing in the NLRA suggests that abusive conduct is an inherent part of such protected activity.

Following this reasoning, the NLRB adopted a new test for reviewing employee discipline decisions that focuses on determining whether the employee was disciplined for abusive conduct or for engaging in protected activity. This test requires the employee to show (1) that she engaged in protected activity; (2) that the employer knew of the protected activity; and (3) that the employer disciplined the employee as a result of the protected activity.

This ruling applies retroactively and provides employers more clarity and freedom regarding whether they can punish abusive conduct done under the cloak of protected activity.