For the past several years, the majority of employers have been aware of the increasing pro-union trend of the National Labor Relations Board (NRLB). However, a few recent decisions by the NLRB sparked significant concerns among employers and merit consideration by any company, whether unionized or not.
In June, an administrative-law judge with the NLRB ruled that Cooper Tire & Rubber Co. had unlawfully terminated an employee after that employee shouted racist comments during a Steelworkers strike in Findlay, Ohio. And in late March, two NLRB members ruled that a catering company unlawfully terminated an employee who called his manager a vulgar name and mentioned the manager’s mother in a Facebook post. In both cases, the NLRB found that the employee had engaged in protected activity under the nation’s labor laws.
These rulings, along with the broader trend by the NLRB to side with labor in disputes, should serve as just one more reason for employers to review their company policies and be aware of recent trends.
What the Law Says
The recent rulings by the NLRB applied federal labor law under the National Labor Relations Act (NLRA). Under federal labor law, employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity.
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employees also have the right to refrain from any or all such activities.
Section 8 of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7” of the act. Accordingly, when an employer does interfere with employee rights, the NLRB has authority to order remedies, such as reinstatement, back pay and other relief.
Even more significantly, the NLRB has jurisdiction over union and non-union employers alike. In recent years, the NLRB has aggressively asserted its jurisdiction over non-union employers when it determines that employees engaged in protected activity.
Recent NLRB Rulings
Recent rulings by the NLRB demonstrate a disturbing trend in federal labor law: conduct which most employers would typically believe warrants discipline or termination has been ruled lawful under labor law, at least in some situations.
The Cooper Tire case began in 2011, when Cooper Tire’s collective bargaining agreement with the United Steelworkers expired. The union and the company were unable to reach an agreement, which led to a strike. Eventually, the company began using replacement workers, and the union picketed the entrance of the company’s facility. In January 2012, several vans of replacement workers, including African American workers, drove past the picket lines. A union employee, Anthony Runion, yelled out several racist comments as the van drove past.
Cooper Tire fired Runion and two other employees for these comments, and the union filed a grievance. An independent arbitrator upheld Runion’s termination, finding that his comments violated Cooper Tire’s No Harassment Policy. However, the union appealed to the NLRB, and an NLRB administrative-law judge ruled that the harassment policy was irrelevant in the case.
In another case from 2011, workers at New York catering service Pier Sixty began to consider unionizing. According to the NLRB, employees felt that they were being disrespectfully treated by supervisors, which became an issue in the union-organizing campaign. At an event two days before the union election, the assistant banquet director criticized employees for talking among themselves as guests arrived.
One of the workers, Hernan Perez, was upset by the comments, and he responded by going outside to use his phone to post a profane message to Facebook. The post was visible to Perez’s Facebook friends, including ten of his coworkers. The company fired Perez for violating company policy, based upon his Facebook post.
On March 31, 2015, the NLRB ruled that Perez had been wrongly terminated. “Although we do not condone Perez’s use of obscene and vulgar language in his online statements about his manager, we agree with the judge that the particular facts and circumstances presented in this case weigh in favor of finding that Perez’s conduct did not lose the Act’s protection,” the NLRB’s decision read.
Next Steps for Employers
With these recent rulings and others like them, companies find themselves in a potential no-win situation. It’s imperative that companies vigorously and evenly enforce their no-harassment and other policies, but they must be careful when they discipline employees whose actions may constitute protected concerted activity under the NLRA. To juggle these priorities, employees should take several steps:
Review and update harassment policies. Employers should review and, where necessary, revise their harassment policies. They should consider statements and activities in the context of union and union-organizing activities. However, because even companies without unionized workforces can find themselves under the jurisdiction of the NLRB, it’s important to work closely with knowledgeable legal counsel who can help employers navigate the changing landscape.
Be consistent. One area where Pier Sixty ran into trouble was its general tolerance for vulgar language in the workplace. As the NLRB noted in its ruling, “vulgar language is rife in [Pier Sixty’s] workplace, among managers and employees alike.” Employers should use the same standard for all employees, managers and workers alike, and should consistently and vigorously enforce their no-harassment and other policies.
Train managers and supervisors. Managers and supervisors should be well trained on discipline, counseling and other company policies, as well as union issues. Now is a good time for employers to implement training for all managers and supervisors to help ensure consistent enforcement of company policies and knowledge of the changing legal landscape.
Be prepared for consequences. Even when employers follow procedures precisely, they can still run into trouble with the NLRB. Accordingly, if employees engage in harassing or discriminatory behavior that could be connected in any way to protected activity, employers need to proceed very carefully. Employers should ensure that all actions have been thoroughly and completely documented, and, before taking any disciplinary actions, they should talk to their HR department and attorneys.
Given the trend of recent NLRB decisions, companies may be left with no good options. To minimize as much risk as possible, employers should proceed carefully when disciplining workers and consult regularly with HR, as well as in-house and outside counsel.