Today's post is by one of the firm's Peggy Browning Fellows, Nicholas Stonecypher.
The NLRB’s recent decision in General Motors, 369 NLRB No. 127 (July 21, 2020) restricts the right to engage in union activity. Setting itself up as a defender of
order in the workplace, the Board holds that discourteous union activity is not protected by the National Labor Relations Act.
The basic concept here is not new. It is against the law to fire an employee because of his or her union activity. But not all union activity is protected by law. Violence, unsafe behavior, and other violations of valid employer rules can be legitimate reasons to terminate an employee, even if union activity is also involved. This has been the law for decades. If the employee
crosses the line the union activity is no longer protected. What the General Motors decision did is move the
line. It is now more difficult to protect employee organizing.
Under the prior rule, an employer’s punishment of worker outbursts during union activity was evaluated by considering four factors:
- the place of the discussion;
- the subject matter of the discussion;
- the nature of the employee’s outburst; and
- whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
For example, a black union worker at GM told one of his managers to (1)
shove it up [his] f---ing ass, (2) responded to another manager’s request to talk quietly by mocking the manager as a slaveowner, and (3) on another date said that he would
mess [the manager] up. Under the Atlantic Steel Co. test, the second and third actions would be unprotected, and the employee could be fired for them. But the first one was protected. This was because, although it was extremely crude, it did not
cross the line drawn by Atlantic Steel.
That was not good enough for this NLRB. The Board changed the rules to make it easier to find activity unprotected.
The Board’s reasoning is that profanity like this can be part of harassment. Under Title VII of the Civil Rights Act, (if the harassment is for an illegal reason) an employer is responsible for the harassment of its employees if the employer has knowledge of it but doesn’t take prompt remedial action. Therefore, the NLRB argued, employers were trapped between a duty to discipline harassing employees, and an obligation not to discipline workers engaged in union organizing. By punishing employers for disciplining harassers, the NLRA is undermining the anti-discrimination aims of the Civil Rights Act.
But, as the National Nurses United explained in their amicus brief, the Board is able to point to no such case in fact. That’s because there likely is no case where the Atlantic Steel rule protected conduct that violated Title VII of the Civil Rights Act. The Board points to several cases where offensive comments by workers involved in organizing a union were held to be protected by the Act. In addition to the instant case, the Board cites cases where workers shouted expletives at their employer as well as instances where workers hurled racial epithets. This is pure misdirection.
A harassment claim under Title VII requires the plaintiff to show that the harassing conduct is more than an isolated incident, offhand comment, or mere offensive utterance. For conduct to constitute harassment it must change the terms and conditions of employment for the plaintiff. Indeed, NNU’s brief quotes the Supreme Court’s point that Title VII is not meant to
become a general civility code. And yet, the Board now holds up Title VII to justify its imposition of just such a civility code. If the conduct that the new rule regulates doesn’t rise to the level of harassment, what exactly is it regulating? Union organizing. Why? Because employers find union organizing abusive.
Now, when employers punish workers for being
abusive while organizing with their coworkers, workers will lose legal protection if the employer can effectively persuade the Board that the reason for the punishment was the profanity and not the union activity. The Board has decided that it can separate the outburst from the union activity.
But is this really possible? The Atlantic Steel standard was based in a very practical understanding that
the protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. Consumers Power Co., 282 NLRB 130, 132 (1986).
Consider captive audience meetings, which are a tried and true anti-union tactic. Employers hold mandatory meetings, staffed by high-paid labor lawyers and consultants to persuade employees to vote against the union. Employers, who cut the checks that keep the lights on in each of their workers’ homes, require them, on pain of dismissal, to attend a meeting filled with anti-union propaganda. Could a worker standing up to say
F--- you, I’m voting for the union now be more easily dismissed?
The new rule applies the Wright Line standard which proceeds in three steps. (We've previously posted on
Wright Line in plain language on this blog!) First, it requires the punished worker to show that she
- engaged in protected concerted activity,
- the employer knew about the activity, and
- the employer had a motive to discourage the worker exercising her rights.
Second, the employer then has the burden of proving that he would have fired the union worker for the outburst, even if she wasn’t engaging in section 7 activity. In other words, the boss has to convincingly argue that the only reason they’re firing her is because she said
F--- you . . . and not because she said
. . .I’m voting for the union!
Third, if the employer is convincing, then the worker gets one more shot to show that the employer’s explanation in the second step is not persuasive; that it is just an excuse.
It’s an open question how far this goes. Employee speech at work is still technically protected by the NLRA, but now AJs sensitive to
civility have the basis they need to rule against workers. The Board is notorious for flip-flopping rules just like this as the Board appointees shuffle back and forth between Democrat and Republican.
Workers should know that they can still talk about union organizing at work. And if your employer retaliates, it is still unlawful. Just try to remember to quietly say
darnit instead of shouting
g--d---it so as not to upset the delicate sensibilities of your exploiters. Or the Board.
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