University of Arkansas at Little Rock Law Review

Document Type



Changes to labor law by the National Labor Relations Board are nothing new; changes in Presidential administrations often result in changes to the law, based on differences in philosophy by new majorities of the Board toward the proper interpretation of the National Labor Relations Act. But in2020, the Board made a fundamental change to long-standing interpretations of the Act’s protections for union and other concerted activities, not based on the Act itself, but based on what it said were the mandates of the anti-discrimination laws for employers to prevent harassment and discrimination. The Board contended that the former context-driven standards prohibited employers from complying with the anti-discrimination laws, but this article demonstrates that the anti-discrimination laws do not require that the Act’s protection be stripped from all racially and sexually offensive conduct that occurs in the context of union and concerted activities. This article also demonstrates that the new standard adopted by the Board, focusing on employer motivation in disciplining employees, fails to recognize all of the purposes of the Act it-self. This article proposes a return to the Board’s traditional context-driven standards, which allowed the Board to decline to protect concerted activities based on their egregiousness, and discusses potential changes to those standards, or the interpretation of those standards, to allow employers to comply both with the dictates of the Act and the requirements of the anti-discrimination laws