November 29, 2022

Volume XII, Number 333


November 28, 2022

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NLRB Reminds Employers Importance of Applying Consistent Discipline Policies in Workplace

Noting the employer did not have an employee code of conduct policy prohibiting the use of derogatory language, the National Labor Relations Board (NLRB) held an automotive dealership violated the National Labor Relations Act by wrongfully terminating a union employee for calling the owner a derogatory term during negotiations. Cadillac of Naperville, Inc., 371 NLRB No. 140 (Sept. 22, 2022).

The Board explained that the employer failed to demonstrate it would have terminated the employee absent the alleged protected activity and that such derogatory language was common in the employer’s workplace.

In Cadillac, unionized employees commenced a strike after negotiations for a successor collective bargaining agreement stalled. The employee in question, a member of the union’s negotiating team, got into a verbal altercation with the employer’s owner and yelled a derogatory term at the owner. The employer terminated the employee for insubordination.

To decide whether an employee was disciplined for engaging in protected activity, the NLRB applied its mixed motive Wright Line test. The Board first found the general counsel (the Board’s prosecutorial authority) established a prima facie case of retaliation under Wright Line. It held the employee engaged in protected activity, the employer knew of the activity, and the activity was a motivating factor in the disciplinary action.

The NLRB then determined the employer failed to satisfy its burden of demonstrating it would have terminated the employee regardless of the employee’s protected concerted activity. The NLRB concluded the employee’s behavior was “the utterance of a single derogatory term in response to a profane threat of physical force from the owner…” and use of such language by both parties was common. Additionally, the employer did not produce evidence of any policy prohibiting such conduct to rebut the inference of an improper motive. As a result, the Board found the employer violated the Act.

The Board’s recent decisions applying the mixed motive Wright Line standard remind employers that they should promulgate, maintain, and consistently enforce clear and narrowly tailored work rules and policies. Doing so will help an employer establish it would have taken the same action against an employee regardless of purported protected concerted or union activity should discipline later be challenged.

The current NLRB’s recent decisions underscore its willingness to expand the scope of protected employee conduct, while requiring employers to demonstrate more rigorous proof of available defenses.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 277

About this Author

Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

Daniel D. Schudroff, Jackson Lewis, Employment Litigation Lawyer

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.  His practice is focused on traditional labor matters, employment litigation, and counseling.  Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of...

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Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

Richard F. Vitarelli Harford  Connecticut Labor Relations Lawyer at Jackson Lewis Law Firm

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...