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Employment Blog

The NLRB has again been rebuffed by the federal Court of Appeals in its pursuit of charges against employers for terminating employees due to the exercise of their protected speech rights.  In a recent decision from the Eighth Circuit Court of Appeals, the Court of Appeals found (albeit in a split decision) that the NLRB failed to prove that a company violated the protected speech rights of an employee who made a “cut throat” gesture to another employee.

In this decision, the Eighth Circuit Court of Appeals said that the NLRB failed to prove the employee’s involvement in strike activity was the ultimate motivating factor in the decision of the company to discharge the employee.  Rather, the Court of Appeals held that the conduct of the employee, making a “cut throat” gesture to another employee, was a violation of the “zero tolerance” workplace violence policy and therefore the company was justified in terminating the individual.  The Court of Appeals held that the Board failed to show that the conduct of the company was discriminatory animus towards the protected activity of the employee (being involved in a picket during a strike) and that such protected conduct was not the substantial motivating factor in the decision to terminate the employee.

This is another decision for the employer and shows the continued effort by the NLRB to impose requirements upon an employer in any situation where the employer is dealing with discipline against a union-sympathetic employee.  Employers must be very careful to document their decisions and rationale for terminating an employee who is involved in union-related activities in order to avoid an unfair labor practice charge from the NLRB.