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Employers May Not Have To Retain Racists, Sexists And Belligerently Disobedient Employees After All-The NLRB Appears Ready To Rethink Its Positions On Controversial Discipline-Related Doctrines

It is lawful to discipline and even discharge an employee for making inappropriate or offensive remarks in the workplace. Indeed, current anti-harassment and anti-bullying laws may require an employer to take adverse action against a worker for their use of such “bad” language. However, when those remarks are made while an employee is engaged in union or other protected concerted activity (PCA), then, depending upon the employee’s remarks and the context in which they are made, disciplining them for their use of inappropriate language may be an unfair labor practice. Atlantic Steel, 245 NLRB 814 (1979). For example, striking employees who, in addition to directing offensive statements at those who cross their picket line, also threaten them with physical harm or violence or assault them will lose the protection of the National Labor Relations Act (NLRA or the Act). On the other hand, those who merely verbally attack, trash talk or speak ill of line crossers, no matter how extreme or offensive their words are, generally remain statutorily protected. Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984). During its reign, the Obama National Labor Relations Board (NLRB) issued a number of decisions relying on Atlantic Steel to grant protection to represented employees who voiced extremely profane and racially-charged language in the workplace. See, e.g., Plaza Auto Center, Inc., 360 NLRB 972 (2014); Pier Sixty, LLC, 362 NLRB 505 (2015); and Cooper Tire & Rubber Co., 363 NLRB No. 194 (2016) to get a sense of the outrageous conduct the Board has recently found permissible under the Act.

Likewise, in Total Security Management, 364 NLRB No. 106 (2016), the Obama NLRB held that, even though employers retain the right to maintain and enforce existing work rules and the discretion to discharge recently unionized workers if they violate those rules, the employer still must give the employees’ new union notice of the employer’s intention to exercise that discretion and to meet and confer with the new union before meting out discipline, at least until such time as the employer and the union have entered into their first collective bargaining agreement or some other agreement governing discipline. Before then, an employer’s existing work rules and their enforcement were considered to be the status quo. Accordingly, prior to the Board’s decision in Total Security, employers were free to enforce existing workplace rules against workers without prior notice and bargaining. McClatchy Newspapers, Inc. d/b/a The Fresno Bee, 337 NLRB 1161 (2002).

As we anticipated back in a December 2017 blog, cases finding no loss of protection despite obscene, vulgar, or other highly inappropriate conduct were targeted by the Board’s General Counsel for possible review and now definitely appear headed for the chopping block. On September 5, 2019, the Board issued its decision in General Motors LLC, 368 NLRB No. 68 (2019), and issued a Notice and Invitation to the parties and amici to file briefs addressing the standard currently in place. In General Motors, the employer suspended an employee because he blurted a profane remark to his supervisor while engaged in union activity. Under Atlantic Steel, whether an employee’s remarks are protected or not depends upon a weighing of the following factors: (1) the place of the discussion leading to the outburst; (2) the subject matter of the discussion leading to the remarks; (3) the nature of the employee’s outburst and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice. Applying these standards, an administrative law judge found the employee’s remarks protected, his profanity notwithstanding, and held that GM committed an unfair labor practice when it disciplined him for making the admittedly inappropriate remarks.

The Board’s Notice and Invitation seeks input on the following issues/questions:

  1. Under what circumstances should profane language or sexually or racially offensive speech lose the protections of the Act?

  2. To what extent should the “realities of industrial life and the fact that labor disputes engender ill feelings and strong responses” be applicable with respect to the use of profanity or language that is offensive to others on the basis of race or sex?

  3. Should the Board consider the norms of the workplace, i.e. whether profanity is commonplace and tolerated, and, if so, should it consider employer work rules prohibiting profanity, bullying or uncivil behavior?

  4. Should the Board adhere to, modify or abandon the standard the Board applied in certain enumerated cases to the extent that it permitted a finding that racially or sexually offensive language on a picket line did not lose the protections of the Act?

  5. What relevance should the Board accord to anti-discrimination laws in determining whether an employee’s statements lose the protections of the Act and how should the Board accommodate an employer’s duty to comply with such laws and its duty to protect employees in the exercise of their rights under the Act?

Likewise, in 800 River Road Operating Company d/b/a Care One at New Milford, 368 NLRB No. 60 (2019), the Board issued an Order refusing to allow a union to withdraw its charge that will put the Total Security doctrine before the Board and allow it to reverse or modify it. Here, a union filed a charge and litigated failure to bargain charges alleging Total Security violations based on an employer’s disciplinary reduction in hours of 20 bargaining unit members and the discharge of one worker, all without first bargaining with the Union. After the Union prevailed before an ALJ on these claims and the case proceeded to the Board on administrative review, the Union moved to withdraw the claim, apparently fearing that the current Republican majority would use the case as a vehicle to reverse Total Security. Such withdrawal requests are commonly granted for they reduce the Board’s case load and the Board generally will not concern itself with how parties conduct their affairs. But in the case of Care One, the Board denied the Union’s motion to withdraw, noting that the Board and the parties had already expended significant resources in the litigation and citing the case as “an opportunity to address a significant issue under the NLRA.” Accordingly, the Board will now have an opportunity to reverse or significantly modify the Total Security rule, much to the chagrin of organized labor.

TAKEAWAYS:

  1. The current Board appears to be on a mission to reverse the excesses of the Obama Board and availing itself of every opportunity it gets to do so.

  2. The Board’s “Invitation” in GM signals that the Atlantic Steel doctrine is about to be scrapped or substantially modified as recently happened in answer to another Board “Invitation” in the recent Board decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019), overruling Sandusky Mall, 329 NLRB 618 (1999) and barring union solicitor’s from entering and using an employer’s premises to communicate with the employer’s customer. See our blog, “The NLRB Rules That Employers May Bar Union Representatives From Their Property Even Though They Have Allowed Other Third Parties To Engage in Civic, Charitable Or Commercial Solicitations,” dated September 10, 2019.

  3. Likewise, the Board’s refusal to permit the withdrawal of the Union’s charge in Care One suggests that the Total Security rule may not be long for this world. Indeed, smart money is betting that the Obama-era decision will be reversed and the law will return to the Fresno Bee rule allowing employer’s to rely upon and enforce the disciplinary work rules it has in place at the time of unionization without prior notice to and bargaining with the union.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

415-774-2934
John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees.

Mr. Bolesta also regularly counsels clients on all aspects of federal, state, and local equal employment opportunity and fair employment practices laws and regulations, and regularly advises clients on confidentiality, trade secrets, no solicitation and non-compete matters. Moreover, Mr. Bolesta represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. His experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before Administrative Law Judges and in court.

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James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

212-634-3025