Do you intend to discipline a union steward for “salty language” during a grievance meeting? Not so fast, says the NLRB and the 5th Circuit US Court of Appeals.
The National Labor Relations Act (NLRA, or The Act) has for decades been interpreted to ensure that employees engaged in union activities will not be disciplined for emotional outbursts during those activities in all but the worst cases.
So if a steward or employee loses her temper in a grievance meeting and uses some bad language, management usually can’t discipline the employee without violating the Act.
But it’s also true that excessive and egregious misconduct during protected concerted activities loses the protection of the Act and does expose the actor to discipline under the employer’s disciplinary policies – even if the employee is acting as a union steward in a tense and emotional meeting.
In its May 1 decision, The United States Court of Appeals for the Fifth Circuit covered this issue at great length and detail in Lion Elastomers (372 NLRB No. 83 (2023)), overruling General Motors LLC (369 NLRB No. 127 (2020)) and reinstating the four-factor Atlantic Steel test governing employee conduct toward management in the workplace.
In Lion Elastomers, the Board found that the employer violated Section 8(a)(1) of the Act when it discharged an employee who raised concerns in a company safety meeting.
You are encouraged to read the decision in its entirety. The court covers the long history of disciplinary cases for employee actions during protected activities; practitioners on both the employer and union sides of the aisle will gain from a thorough reading of the case.
But we’re skipping all of that today to attempt brevity and minimize boredom. We’ll use a few segments from the case to address the issues.
Why do employers have to put up with uncivil actions by employees during union activities? The Lion Elastomers court wrote on page 2:
“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. Thus, when an employee is discharged for conduct that is part of…protected concerted activities, the relevant question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service.” (emphasis added)
Citing Bettcher Mfg. Corp., 76 NLRB 526 (1948), a case involving offensive remarks by an employee during contract negotiations, the court wrote on page 2:
“…(F)or collective bargaining to succeed (as the Act envisions), a ‘frank, and not always complimentary, exchange of views must be expected and permitted,’ even including questioning the veracity of a negotiator…If an employer could discharge an employee for giving offense, it would frustrate the Act’s goals – either ‘collective bargaining would cease to be between equals (an employee having no parallel method of retaliation)’ or ‘employees would hesitate ever to participate personally in bargaining negotiations…’ ” (emphasis added)
This highlights the key reasons why employee misconduct is protected during union-related activities:
The NLRA’s subjects are inherently emotional – wages, benefits, working hours, safety, claims of contract violations, picketing, strikes, contracting, meals, overtime – will be personal and emotional for the employees and union stewards affected. It would be naïve to think that calm and professional discussions will ensue.
The NLRA intends a level playing field for employees and employer. But the employer has extensive resources and wields the disciplinary hammer; the employee has no similar tool or resources with which to retaliate. Unless the employer’s disciplinary tools are restrained to allow some room for emotional employee speech and action, the playing field is tilted sharply in favor of the employer – especially given the vast resources available to the employer.
How do we draw the line between employee actions during union and NLRA activities that are “protected,” and those that are “excessive and egregious?”
In Lion Elastomers, the 5th Circuit returned to a decades-old standard called “setting-specific standards,” which require an examination of the employee behaviors in the specific setting in which it takes place.
In one cited case, the Board held that name calling on the picket line did not justify a refusal to reinstate the employees, writing:
“The Board observed that given the realities of strikes and picket lines – ‘it is common knowledge that in a strike where vital economic issues are at stake, striking employees will resent those who cross the picket line -- harsh language ‘must be regarded as an integral and inseparable part of (the employees’) picket and strike activity,’ protected by the Act.” (Lion Elastomers, p. 3, citing Longview Furniture Co., 100 NLRB 301 (1952))
The Lion Elastomers court wrote further:
“…conduct occurring during the course of protected activity must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context…” (p.3)
The overruled General Motors case had prescribed a Wright Line (251 NLRB 1083, 1980) case analysis where the employer could justify discipline if there was no anti-union animus and it would have disciplined an employee for the same behavior during ordinary work. This was an employer-friendly analysis that exposed a steward to discipline for emotional outbursts that the employer would not be expected to tolerate for employees in regular work in many instances.
The 5th Circuit’s employee-friendly test seems to be: 1) Would we logically expect this uncivil behavior to flow from the emotions and processes that are involved in this specific setting, and 2) Would we be discouraging employees from engaging in their protected union activities if discipline could ensue?”
If these questions are answered in the affirmative, it appears that disciplinary action is inappropriate in all but the most egregious of cases.
Where is that line drawn? That’s anyone’s guess. Like many labor relations questions, the answers require professional research and advice on specific facts involved. When employers encounter salty language or other uncivil behaviors during union-related activities they should call “time out,” and proceed in accordance with professional advice and good judgment.
When employers and unions have strong, professional relationships built on mutual trust and respect, these unsavory situations are largely avoided. Reach out to MARC for help in creating and maintaining the right labor-management relationships in your organization.