NLRB Modifies Standard for Addressing Offensive Outbursts in the Course of Protected Activity
Finally!! The NLRB took a step towards curbing abusive behaviors committed by union members. For decades, union members and stewards have verbally assaulted managers and supervisors and gotten away with it by waiving their “protected rights” flag. In General Motors LLC and Charlie Robinson, the NLRB has pushed back and decided that:
“We read nothing in the Act as intending any protection for abusive conduct from nondiscriminatory discipline, and, accordingly, we will not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful.”
In reaching its decision, The Board recognized that historically it has “mistakenly assumed discrimination and antiunion motivation by treating union activity as inseparable from related abusive conduct.” In other words, if the abusive conduct occurred while engaged in protected behavior, then any discipline for the conduct was assumed to be discriminatory.
From now on, things will be different. The General Counsel must first present evidence of a causal connection between the discipline and Section 7 activity. Then the employer gets a chance to prove the discipline was for the abusive behavior, not for any unlawful, anti-union purposes. If the employer succeeds, then the discipline stands.
My guess is some abusive language will still be allowed. The occasional “bullsh*t” here, the random f-bomb there. However, if the Board is willing to curtail even a little of it, I applaud their efforts.
And now…the rest of the story…..
I was curious to see how the unions would feel about this decision, how they would defend slinging racist, sexist, harassing slurs at manager. Normally I have to wait until a Board decision is issued and then I read the unions’ commiserating debriefs on their websites. But not this time…
In this case, the NLRB invited one and all to submit amicus briefs before reaching their final decision. Those are briefs from “interested” parties that “help” the Board make their decision. Well, the unions jumped right in and filed a few. So, of course, being the labor relations geek that I am, I had to read them. Here are a few of my favorite lines (see below)(The union’s language is in italics, with my comments in parens):
“The statement “you can all kiss my motherf—king ass” as he walked out the door, again while offensive language, was not directed at any protected characteristic.” (I guess we should be glad the union recognized it was offensive.)
“There is no reasonable basis for singling out profane or racially or sexually offensive language as compared to other inappropriate language or conduct and applying special rules to the former.” (In other words, all “inappropriate language or conduct” is equal under the eyes of the union. Really? Doesn’t that conflict with the social tsunami occurring over BLM, #metoo, and other marches for social justice…all of which the unions are ready participants? I wonder if the rank-and-file union members know how their union leadership really feels about these important social justice issues?)
“From the popularity of adult-themed television to the frequently course and profane language of the current President, current cultural trends demonstrate that profane language is becoming more accepted in everyday life, not less.” (I guess employers are just out of touch. According to the unions, employers need to dump their old fashioned ways and gleefully accept f-bombs and Kardashinian behaviors as the norm. And yes, I just made up the word, “Kardashinian.” Feel free to use it liberally.)
Those were just a few of the “gems” I found. If you want to read the briefs, here’s the link: Union Amicus Briefs Enjoy!
Scott Allan, JD, is the founder of The Allan Labor Group and curator of Healthcarelaborlaw.com. He’s spent over 25 years representing healthcare employers in their labor relations activities. He has worked in the public and private sector, represented rural nursing homes, small town clinics, state healthcare facilities, standalone hospitals, multibillion-dollar healthcare systems, and everything in between. He also spent seven years on the “inside” working for unions.