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What Happens When an Employee Engages in Abusive Conduct in the Course of Union or Concerted Activity?

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For many years, the National Labor Relations Board (NLRB) has been dealing - and struggling - with the above issue.  As an example, racial epithets have been hurled at non-strikers crossing the picket line, the term "whore" has been directed to persons signing up for overtime, and a company executive has been called a "f- idiot," and similar cases.  These cases are somewhat different than a typical case because they deal with words or actions during the course of activity that would otherwise be considered concerted and/or protected.  The issue is whether an employee has lost the protection of the Act under these circumstances.

During the Trump Administration, the NLRB rejected the concept of setting specific standards in which each type of activity was subject to different legal concepts on the basis that such different standards yielded "unpredictable" results.  Instead, the NLRB under the prior Administration adopted a single standard dealing with cases involving "abusive conduct" in the course of Section 7 activity, that it was not the nature of the employee's conduct, but rather the motive of the employer in taking adverse action against the employee, that determined whether the action was lawful or not.  Thus, if the employer's action was motivated by a legitimate business reason, it was lawful, even if they were related to actions during the course of otherwise legitimate union or concerted activity.  

In the May 1, 2023 ruling in Lion Elastomers, 2023 NLRB Lexis 202, the Board overrules the prior NLRB standards in General Motors, 369 NLRB No. 127 (2020), and returns to what it characterized as prior NLRB law.  The earlier Board mentioned in the ruling the earlier case rationale of Atlantic Steel, 245 NLRB 814 (1979):  In determining whether an employee's conduct during such concerted activity loses the protection of the Act, the NLRB considers: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice.  

Editor's Note - This writer notes in almost every newsletter that the current NLRB has been vastly expanding the rights of organized labor and employees at the expense of management rights, and this case is another example.  The case will have ramifications to employer policies as well, including written policies in handbooks and otherwise, social media postings, and other such activities.  The NLRB will in the near future issue rulings on its current interpretation of employer handbook and other such policies, which will not be welcomed by the management community.  It should be remembered that these more recent NLRB rulings need not relate to any type of union activity, as any "concerted activity for mutual aid or protection," i.e., the promotion of employee rights, is protected from discipline under the same concepts.

A particular application of the new concepts occurred in an earlier case called Cooper Tire & Rubber Co., in which the NLRB required reinstatement of a striker who had directed racial taunts at a van carrying replacement workers that had just crossed the picket line.  Employers properly wonder whether the employer's inability to discipline in such situations creates a hostile work environment, thus creating potential Title VII liability and an obligation to discipline or fire the striker.  The NLRB in the current case addresses that issue in Footnote 39.  It states that: "In the case of any discrimination claims raised under state or local laws (also invoked by the General Motors Board), the doctrine of federal pre-emption would very likely apply, resulting in a dismissal of such claims as being exclusively subject to the jurisdiction of the NLRB."  One wonders whether unintended consequences can be created under this concept.  Similar issues that are more complicated arise concerning federal discrimination laws.

This article is part of our June 2023 Newsletter.

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