NLRB Upholds Disciplinary Action Despite Unlawfully Overbroad Work Rule

On August 11, 2011, the National Labor Relations Board (NLRB or the "Board") issued a new decision regarding the extent to which an employer violates the National Labor Relations Act (NLRA or the "Act") by disciplining an employee who violates a work rule that is unlawfully overbroad, where the conduct resulting in the discipline is wholly outside the protections of Section 7 of the Act. In Continental Group, Inc., 357 NLRB No. 39, the Board clarified long-standing precedent and held that discipline imposed pursuant to an unlawfully overbroad rule is unlawful in those situations in which an employee violated the rule by engaging in protected conduct or conduct that otherwise implicates the concerns underlying Section 7. Such activities would include conduct involving employees' rights to organize, collectively bargain, engage in other concerted activities, and to refrain from such actions. Importantly for employers, however, the Board also held that an employer