Imagine, if you will, an employee calling the owner of the employing company a derogatory term to their face. The employer understandably fires the employee only to have the National Labor Relations Board (NLRB) order the employer to reinstate the employee.
How does this happen? To the NLRB the circumstance of an employee being able to cuss at the boss without consequences is acceptable when the employee is in a union and involved in some aspect of labor dispute or negotiation.
In the recent case of Cadillac of Naperville, Inc. the employee engaged in derogatory name calling and did so during contract negotiations. The employer did not have a rule in place prohibiting the use of derogatory language, probably for the same reason they did not have a rule stating that an employee must wear clothes to work – common sense. The belief in everyone’s common sense to do or not to do obviously wrong acts was not relevant to the NLRB. The NLRB stated, “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.”
The NLRB has a test to determine whether an employer’s actions were really a pretext for anti-union activity. This NLRB applied a test called Wright Line that it uses to determine whether the employee was engaged in a protected activity at the time of the verbal assault. If the employee happens to be involved in a labor dispute or labor negotiations as in this case, it becomes the employer’s responsibility to show they would have fired the employee regardless of the behavior and its connection to protected concerted activity. In this case, because the employee acted out during a labor dispute, the NLRB found he could cuss out his boss with impunity.
This particular decision does not stand alone in its absurdity. The NLRB extends protections against employers and in favor of employee misbehavior that would otherwise result in discipline or discharge in any non-union environment.
In fact, the NLRB’s protections have even run contrary to other laws. Specifically the equal employment anti-discrimination laws and regulations when the derogatory remarks cross into racial, gender, other slurs made while the employee happened to be involved in some action deemed protected concerted activity. This has happened in a labor picket line and has put employers in the position of acting either contrary to the National Labor Relations Act (NLRA) and the NLRB’s interpretation of it or against Title VII of the Civil Right Act that protects employees from discriminatory harassment by the employer and other employees.
The EEOC and NLRB are still trying to sort that conflict of law interpretation out. This leaves employers open to charges from one or the other agencies if an employee makes discriminatory statements using racial or other protected characteristic derogatory epithets while supposedly engaged in “protected” labor activity.
The Naperville case was in a unionized environment. However, employers should keep in mind the NLRB’s reach goes into non-union organizations too.
Understanding the arcane rules handed down through NLRB case law means knowing that there is rationale based on an understanding the NLRA. ASE has added two new labor classes to its curriculum of human resources classes this fall that will help human resource professionals, supervisors, and management to understand labor law better and help avoid getting into and then possibly losing a case such as the above.
Through its partner Clark Hill, ASE is offering two half-day labor classes:
National Labor Relations Act Overview
October 26, 2022
1:00 p.m. - 4:30 p.m.
Participants will learn what the National Labor Relations Act (“NLRA”) is, common issues that arise in the workplace that involve the NLRA, best practices for complying with the NLRA, and other aspects of the NLRA that employers need to know.
Union Avoidance: Recognizing and Handling Unionization Attempts
December 7, 2022
1:00 p.m. - 4:30 p.m.
Participants will learn steps companies can take to avoid unions from organizing their workforce, the signs typically associated with a union organizing campaign, ways to prevail in union organizing campaigns, and the laws and rules regarding what companies can and cannot do during a union organizing campaign and election.
Source: NLRB Reminds Employers Importance of Applying Consistent Discipline Policies in the Workplace. By Richard I. Greenberg, Daniel D. Schudroff, Jonathan J. Spritz & Richard F. Vitrelli (10/4/2022)