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), the federal agency responsible for enforcing the nation’s labor laws. However, a few recent decisions by the NLRB have sparked significant concern among employers and merit consideration by any company, whether unionized or not.

In June 2015, an administrative law judge with the NLRB ruled that Cooper Tire & Rubber Co. had unlawfully terminated an employee, after that employee had shouted racist comments during a Steelworkers strike in Findlay, Ohio. And in late March 2015, two NLRB members ruled that a catering company unlawfully terminated an employee who called his manager a “nasty mother f*****” 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, regardless of the content of the obscene comments.

The ruling in both of these cases, 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. Although it is largely impossible to plan for overreach from the NLRB, employers should be aware of recent trends, in case they find themselves in a similar situation.

WHAT THE LAW SAYS

The recent rulings by the NLRB have applied federal labor law; specifically, 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. According to the NLRB, “It is unlawful for an employer to interfere with, retrain, or coerce employees in the exercise of their rights.”

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 employees’ rights, the NLRB has jurisdiction and the power 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 have engaged in protected activity.

RECENT NLRB RULINGS

As mentioned, 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. Accordingly, it is important for employers to understand the facts and the holdings of recent cases.

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. 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, including: “Hey, did you bring enough KFC for everyone?” and “I smell fried chicken and watermelon.”

Runion’s comments were not the only harassing activity that took place on the picket line. Another union member reportedly yelled, “Hope you get your f****** arms tore off, b****,” and a video showed an unidentified person shouting, “f****** monkey scabs” and “f****** n***** scabs” at the replacement workers.

Cooper Tire fired Runion, along with two other employees, for these racist comments, and the union filed a grievance. At first, an independent arbitrator upheld Runion’s termination, holding that Runion’s 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. “Runion’s ‘KFC’ and ‘fried chicken and watermelon’ statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property,” the administrative law judge found. “The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion toward the replacement workers in the vans.”

The administrative law judge ruled: “I find that the Arbitrator’s award is palpably wrong and not susceptible to an interpretation that is consistent with the Act, and it is therefore ‘clearly repugnant’ to the Act. Accordingly, deferral to the Arbitrator’s award is inappropriate, and I find that by discharging Runion for engaging in union and protected concerted activities on the picket line, [Cooper Tire] violated Section 8(a)(3) and (1) of the Act.”

In another case, dating back to 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. His post read: “Bob is such a NASTY MOTHER F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” The post was visible to Perez’s Facebook friends, including 10 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’ 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’ 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 is 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. In order to juggle these competing priorities, employees should take several steps:

• Review and update harassment policies.

In light of recent NLRB rulings, 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 is 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. In light of the NLRB’s recent trend, 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 the consequences.

In the current environment, 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 human resources as well as their attorneys if there are any concerns about the decision.

Given the trend of recent NLRB decisions, companies may be left with no good options. In order to minimize as much risk as possible, employers should proceed carefully when disciplining workers and consult regularly with human resources, as well as legal counsel.

Publication date: 8/17/2015

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