May 18, 2023

NLRB Returns To “Setting-Specific Standards” When Determining If Employer Commits Unfair Labor Practices

This Article Provided by the Attorneys at Barsamian & Moody, APC

Section 7 of the National Labor Relations Act has long been interpreted broadly by the National Labor Relations Board (“Board”) as protecting employees when they are engaged in disputes over wages, hours and working conditions among other similar disputes. Sec. 7 of the Act grants 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.” (29 U.S.C. § 157.

On May 1, 2023 the Board in Lion Elastomers LLC II, 372 NLRB No. 83 (2023) overruled a prior Board decision in General Motors LLC 369 NLRB No. 127 (2020), significantly frustrating employers’ ability to discipline employees who engage in abusive misconduct because they are supposedly engaged in Sec. 7 activity. In General Motors the board found that an employer did not violate Sec. 7 when disciplining a union worker’s outburst that contained profanities, such as telling his managers to (1) shove it up [his] f—ing ass; (2) responding to another manager’s request to talk quietly by mocking the manager as a slaveowner; and (3) on another date saying he would mess [the manager] up. The Board in General Motors applied the Wright Standard which allows employers to lawfully discipline an employee if it can show it would have taken the same action absent the employee’s Sec. 7 activity. Most recently in Lion Elastomers, the Board, in overruling General Motors, ruled that the previous Board rejected “traditional standards” and held that various “setting-specific standards” must be applied to determine whether discipline of an employee violates Sec. 7. The following are the setting specific-standards and examples of how incredibly harmful they are in application:

  1. When employee misconduct takes place in the workplace and is directed toward management, four factors will determine if the employee’s conduct loses the protection of the Sec. 7: (1) the place of the discussion; (2) the subject matter of the employee’s statements; (3) the nature of the employee’s outburst; and (4) whether the outburst was caused by the employer’s unfair labor practice. (Atlantic Steel, 245 NLRB 814 (1979).) An example of employers’ frustrated ability to prevent abusive behavior in the workplace was in General Motors (cited previously) and Plaza Auto Center, Inc., 355 NLRB 493 (2010). In Plaza Auto Center an employee lost his temper while discussing breaks, restrooms and compensation with the owner of the company. The employee began berating the owner calling him a “f—ing mother f—ing,” a “f—ing crook” and an “a–hole.” (Id. at 494.) He further berated the owner telling him that nobody liked him and that everyone talked about him behind his back. (Id.) The employee pushed a chair aside and threatened that the owner would regret firing him if he did. The owner immediately fired the employee. (Id.) The Board concluded that all four factors—place, subject matter, nature of the outburst and provocation by unfair labor practices weighed in favor of the employee retaining protection. (Id. at 494-496.) The employer appealed and the appellate court remanded the case back to the Board for reconsideration with an instruction to consider if the employee’s outburst was “physically aggressive and menacing.” (Id. at 296.) However, the Board re-weighed the factors and still found the employee’s acts were protected by Sec. 7.
  2. When employee conduct consists of “social media posts and most cases involving conversations among employees in the workplace,” such conduct will be evaluated under a “totality-of-the-circumstances test.” (Lion Elastomers, supra, 372 at 1.) The Board has not applied this test in the context of social media often. However, in Pier Sixty, LLC, 362 NLRB 505 (2015) the Board found that a Facebook post by an employee degrading his manager with personal insults was conduct protected by Sec. 7. The post stated “[B]ob is such a NASTY MOTHER F—ER don’t know how to talk to people!!!!!! F— his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!”
  3. When employee conduct is on a picket-line, such conduct will be evaluated based upon an analysis of all of the circumstances to determine whether “non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.” (Lion Elastomers, supra, 372 at 1.) An appalling example where abusive conduct did not lose Sec. 7 protection was in Cooper Tire & Rubber Co., 363 NLRB 1952, 1957–1961 (2016) when the Board ruled conduct was protected when a white picketer told black replacement workers, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.” Another example was in Briar Crest Nursing Home, 333 NLRB 935, 937–938 (2001) when the Board found that a striking employee telling another employee that, if she went to work, the striker would get another striking employee “on her tail” and “make sure [she doesn’t] come to work.” The Board found that the statements were “not sufficiently unambiguous to be considered threats of bodily harm” to lose Sec. 7 protection. (Id.)

What This Means for Employers:

The Board’s recent decision in Lion Elastomers has paved the way for employees to engage in workplace threats of violence while using Sec. 7 activity as a pretext. Employers are now burdened with the balancing act of protecting employees (which includes supervisors and managers) and avoiding the threat of having an unfair labor charge filed against them. Employers need to make sure that managers and supervisors are well trained in what constitutes Sec. 7 activity and understand that employees should not be disciplined for complaining about working conditions. This may mean that lower-level supervisors should be restricted from discipling employees without approval from higher management or human resources.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. Barsamian & Moody are part of WG’s Ag Legal Network and may be contacted at [email protected] (559) 248-2360.