Joseph Richardson Discusses NLRB Protections for Workers’ Protests

In 2023, the National Labor Relations Board (NLRB) restored protections for workers that shield them from punishment for outbursts during protests. The board recently applied these protections to a dispute between Intertape Polymer Corp. and two workers who were suspended for a heated discussion about safety issues.

The workers’ claims against Intertape initially were dismissed by a judge based on the Wright Line test, which focuses on an employer’s motive for punishing workers. The NLRB later reversed this decision, citing the Atlantic Steel test. This test examines whether a worker’s outburst was so abusive that it cannot be protected.

Willig, Williams & Davidson partner Joseph Richardson discussed the Intertape Polymer case with Law360, emphasizing that the NLRB made the right decision because the workers’ behavior took place during protected union activity. “This case illustrates the absurdity of applying Wright Line to talk about whether or not a manager had a motive to do something, when the course of events clearly shows that he is punishing those workers for what they did,” Richardson said.

When workers are involved in a dispute over their rights, a test that focuses on employers’ motives is significantly less likely to work in their favor. “Applying Wright Line to all of those circumstances gives a board that is not inclined to assist workers an opportunity [to dismiss a claim] by adding that additional step,” Richardson said.

Read the full article online: Restored Outburst Shield On Display In NLRB Decision (Subscription is required.)