New NLRB ruling makes life harder for employers: Here’s how

A new NLRB decision means employers must proceed very carefully before disciplining employees who get a little heated while engaging in union activity.

The National Labor Relations Act (NLRA) gives employees the right to form labor organizations and “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It also separately bars employers from interfering with employees in the exercise of those rights.

And that means employers may not discipline employees because they engage in activities that the law protects.

So what happens if employees engage in abusive conduct while engaging in protected activities? May employers pull the trigger on discipline just as if the conduct had occurred outside the context of union activity?

NLRB rulings: Back and forth

Reversing a 2020 ruling that set out a relatively simple approach, a new NLRB decision says employers must take a more nuanced tack in these situations. And that means employers now must proceed very carefully before disciplining employees for abusive conduct that takes place in the course of union-related activities.

The case involves Joseph Colone, who was a union leader and longtime employee at a rubber manufacturing facility.

Colone was disciplined and later discharged following a tense exchange with superiors at a safety meeting, where he said employees were working too many hours in a dangerously hot environment.

He accused a supervisor of not doing his job, and he told another person at the meeting to “just go ahead and leave” and that “we don’t need you anyway.”

Not the first time

It was not the first time Colone had gotten into a heated discussion at a work meeting. Earlier, he had told a production manager, “You better watch how you talking to me.”

After being warned about his use of “inflammatory and insulting language” that allegedly created “an intimidating working environment,” Colone was presented with a last-chance agreement. When he refused to sign it, he was discharged.

In a 2020 decision, the NLRB applied a then-applicable standard to conclude that the employer violated the NLRA by disciplining Colone for engaging in protected union activity.

NLRB applies standard

Under that standard, to decide whether Colone’s conduct was bad enough for him to lose the protection of the act, the board looked at:

• The place of the discussion
• The subject matter of the discussion
• The nature of the outburst, and
• Whether the employer provoked the outburst.

Applying that standard, the board found that the employer violated the act.

Spontaneous comments made at group work meetings are more likely to be protected, it explained, as is speech that relates to terms and conditions of employment. In addition, it said “Colone’s heated speech is of the sort that is protected under the Act.” Thus, the board found that three of the four factors weighed in Colone’s favor and that he did not deprive himself of the law’s protections.

New administration, new rule

While the matter was on appeal, the board issued another decision in a different case. In that case, it made it easier for employers to sanction union-related job misconduct by generally permitting discipline if the employer would have had the same response even if the employee was not engaged in union activity at the time of the offensive conduct at issue.

After that development, Colone’s case was sent back to the NLRB. By that time, Democrats had seized control of the five-member NLRB board. And not surprisingly, the Biden administration board ditched the short-lived Trump-era ruling, returned to the prior standard, and reaffirmed its initial finding that the employer broke the law.

The upshot of all this: Under the current state of the law, what are known as “setting-specific” standards once again apply to the question of whether an employee’s behavior during union-related activities is bad enough to deprive them of NLRA protections.

There are three of those standards: one governs employee conduct toward management in the workplace; the second governs social media posts and most cases involving employee conversations at work; and the third governs conduct on picket lines.

Remember this

Remember that when they are engaged in union-related activities, employees have some leeway to engage in conduct that otherwise might be unacceptable.

In the eyes of the board, it has merely “reaffirmed the principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, in order to safeguard their statutory rights.”