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The Labor Law Insider - Pause Before You Discipline: NLRB Turns Against Civility in Lion Elastomers Decision, Part I



Host Tom Godar and his guest Rufino Gaytán tackle the newly expanded protections offered to employees under the National Labor Relations Board’s Lion Elastomers decision, published May 1, 2023. As part of the ping-pong effect of a Biden-appointed Board following a Trump-appointed Board following an Obama-appointed Board, employee protections for violations of employer’s policies that were previously available have been restored. This allows employee behavior in the context of concerted activities, such as shouting racial epithets, or engaging in coarse and even potentially threatening conduct, to be excused as part of the real world of labor relations as it is seen on picket lines or in other situations of conflict.

This overruled the 2020 General Motors decision which held that the Board must look to employer intent and good faith in applying employer policies or standards regarding conduct, even if it was also related to National Labor Relations Act. That decision had attacked the standards set forth in Cooper Tire and other decisions; however, the Lion Elastomers decision makes it much more difficult for employers to balance the responsibility to address behavior in the workplace with the rights of employees to engage in concerted activities challenging the employer, its employees, or policies. Mr. Gaytán acknowledges that while General Counsel Abruzzo suggests that there is no inherent conflict with this position, and enforcement of employee rights to be free from threatening behavior or a hostile workplace, the analytical framework to make decisions which balance these rights is hardly easy to apply.

In episode two of this podcast, Tom and Rufino continue their discussion and look at the potential impact upon those employers who do not have union-represented employees. They also discuss some of the practical implications of balancing the newly articulated rights of employees and the overall responsibility of employers to protect all of the employees in the workplace from improper conduct. Join us soon for part two of the Labor Law Insider.

Read the Transcript

This transcript has been auto-generated using Adobe Premier Pro.

00;00;02;24 - 00;00;38;04
Tom Godar
Hello and welcome to the Husch Blackwell Labor Law Insider podcast. I'm Tom Godar your host and I'm glad that you've come along in this podcast. We welcome guests with practical expertize and experience regarding labor law issues and they share their insights related to this ever changing area. The breadth of developments in laws related to unions and individual workers rights that we are experiencing under the Biden appointed National Labor Relations Board and led by General Counsel Jennifer Abruzzo is unprecedented.

00;00;38;21 - 00;01;05;03
Tom Godar
These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies. When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride in the world of labor law.

00;01;05;27 - 00;01;25;25
Tom Godar
It is so great to have you back with the Labor Law Insider. This is your host, Tom Godar and once again, we're excited to talk about changes and developments that are based on the National Labor Relations Board and its decisions. We're going to talk about Lion Elastomers and the United Steelworkers decision that came down on May 1st.

00;01;26;08 - 00;01;46;02
Tom Godar
And we're going to have the pleasure of talking about it with my colleague and partner, Rufino Gaytán, who's been a frequent guest. But if you don't know Rufino well, you may not realize that he's been recognized by Best Lawyers and by Super Lawyers. You may not know that he's a badger, though he's now practicing in our Houston office for Husch Blackwell.

00;01;46;03 - 00;02;09;09
Tom Godar
Well, you may not know that his practice goes beyond just labor law, but he's also considered by his clients, particularly as an expert in EEOC and OSHA matters. He practices not only before the board, but he's had litigation experience for federal courts on a number of matters. And Rufino mostly is a good friend and a thought leader in this area.

00;02;09;09 - 00;02;12;01
Tom Godar
It's great to have you back with us, Rufino. Good morning.

00;02;12;14 - 00;02;20;12
Rufino Gaytán 
Good morning. Thank you, Tom, for that wonderful introduction. And it was only a few lies in there. So thanks.

00;02;20;12 - 00;02;51;21
Tom Godar
Well, we'll let the folks go to your your Web page and find out which of those are lies. Hey, we talked about this. Gosh, you've been with us on Labor Law Insider podcast for, gosh, couple of years. And one of our ongoing comments is that with the National Labor Relations Board as reformatted by President Biden and his administration, that it has leaned hard towards unions and employees and that obviously the Trump board had gone another way.

00;02;51;21 - 00;03;27;00
Tom Godar
And before that the Obama board had in fact, where you practice in this area have become, well, I guess, resigned to the fact that in a sense, employee that elections have consequences. But in a broader sense that a Democratic or Republican administration is likely to appoint members who are going to change a precedent. And I'll tell you, the decision that we're talking about that came out on May 1st, Lion Elastomers and United Steelworkers is absolutely a piece of that ping pong back and forth game, isn't it?

00;03;27;11 - 00;04;13;04
Rufino Gaytán 
Yeah, absolutely. And unfortunately for employers, I think the you know, what this case does is it creates additional uncertainty. It puts most employers who have to deal with these situations, which actually come up more often than they would like. I'm sure. But it just creates such uncertainty and risk. And I think to some extent it forces a lot of employers to make decisions that have them choose between, you know, doing what they feel is the right thing for for the rest of their workforce and for their culture and things of that nature and avoiding a potential legal dispute with an employee who is misbehaving in the workplace.

00;04;13;04 - 00;04;16;18
Rufino Gaytán 
And that's just a tough spot to be in for any any employer.

00;04;16;27 - 00;04;34;05
Tom Godar
Well, we're getting out ahead of our game with our audience. Our friends are listening in. Let's give them a little bit of background. What's going on that gave rise to this case? And and what is the change that you just and I just referred to? Give us some background on this.

00;04;34;29 - 00;05;16;04
Rufino Gaytán 
Sure. So for for a long time, the board, there was a string of board cases that solidified the idea that an employee who was engaging in protected, concerted activity, whether that's union activities or making complaints on behalf of a group of employees, whatnot, that employee is protected under Section seven of the NLRA. If the employee, in engaging in these discussions with management gets a little heated, maybe curses or is is disrespectful to the company or managers that disrespect or he didn't.

00;05;16;04 - 00;05;48;07
Rufino Gaytán 
This would not cause the employee to lose the protections of the NLRA. So essentially an employer could not fire the employee because he or she was being disrespectful in that context. You know, if we go back to just a few years in the General Motors case in 2020, the board essentially overruled a lot of that precedent that that set up those standards and said it's not the setting in which the employee was engaging in this misconduct that matters.

00;05;48;08 - 00;06;19;09
Rufino Gaytán 
What matters is the employer's motive for taking corrective action. So if the employer under the General Motors standard was if the employer is terminating the employee because of the union activities or the protected activities, that's unlawful. But if the employer is trying to balance out the other interests and says, you know, we can't have employees engaging in conduct that is discriminatory, for example, and that's why we're terminating what's not the protected activity.

00;06;19;09 - 00;06;56;09
Rufino Gaytán 
That was the motivation. Now, with the Lion Elastomers case, we're back to that original standard, which was very setting specific. So if the employee is engaging in protected, concerted activity, the board says the employee has a lot of leeway in engaging in conduct that may not be respectful. It might actually be misconduct under an employer's policy, but because the setting is protected and the underlying conduct was protected, the employee cannot be disciplined under Section seven of the law.

00;06;57;03 - 00;07;28;24
Tom Godar
Let's get a little more specific so we can even drill further into that context. 2016 The Board in Cooper Tire and Rubber took evidence that picketing employees who were discharged had been shouting racist and profane comments at replacement workers. Further that in Cooper Tire and that those kinds of comments in a different context were routinely result in termination.

00;07;28;27 - 00;07;59;28
Tom Godar
They don't tolerate racist comments and most of our clients and friends don't and don't tolerate any threatening comments. And that gives rise to termination. In that case, this was the pre Trump board, obviously the Obama board. They said you got to look at the context. This is the heated discussion that might take place on a picket line. And so we're not going to just say that if this had been the standard without protected and concerted activity on the picket line, termination would be laid out.

00;08;00;04 - 00;08;14;09
Tom Godar
We're going to look deeper. We're going to look differently at this than just the same standard you might otherwise apply. And I sort of getting it right as to what the standard had been was changed by the General Motors decision and is sort of returning to.

00;08;14;20 - 00;08;44;23
Rufino Gaytán 
That is correct. You know, again, the focus under the Lion Elastomers case is on the setting again. Right. So we're not looking at the employer's intent as good of an intent or, you know, good faith belief the employer may have had it was doing the right thing or that it was not violating the law. If the misconduct is occurring in a setting that is protected under Section seven, then the employee does not lose the benefit of those protections.

00;08;45;10 - 00;09;12;00
Tom Godar
You know, I can remember conversations we had going back a year and a half. We sort of generally predicted that that was one of the problems. Potentially, if we went back to old standards, that the protections under Title seven might give way to the protections under the National Labor Relations Act or the protections that we all expect for threatening conduct, might give way to the NLRA interpretation of protected conservative activities.

00;09;12;23 - 00;09;27;20
Tom Godar
Where does that leave employers as they try to wind their way through gee how does the context change what we would otherwise do with the well thought out and frankly, oftentimes regularly enforced policies that employers have?

00;09;28;06 - 00;09;53;27
Rufino Gaytán 
Yeah. You know, the board in in its decision in Lion Elastomers tried to address that issue but but I don't think the board is being very practical in its approach here. They essentially say, you know, in the context of of, let's say, racist remarks during a picket line, the board says there is no inherent conflict between the protections of Section seven in that setting.

00;09;53;27 - 00;10;22;26
Rufino Gaytán 
And, on the other hand, an employer's duty to maintain a workplace in an environment that is free of harassment and not hostile. I just don't think that's the right view from the board. Ultimately, an employer in the real world who does not take action against the employee who's shouting the racist remarks or epithets is probably going to get a claim filed with the EEOC.

00;10;22;26 - 00;10;43;22
Rufino Gaytán 
And so then you do have a scenario where the employer has to say to one employee, I'm sorry, employee, that you feel you are being harassed, but I can't terminate that employee or engage in any sort of corrective action against that employee because he happened to do all of these bad things in the context of a picket line.

00;10;44;04 - 00;11;14;00
Rufino Gaytán 
And then on the other side, they're going to have to tell the board, you know, if they do discipline the employee, you know, we're doing this because we believe you're creating a hostile work environment. And then you have to go down that rabbit hole of of essentially admitting that the employee is creating a hostile work environment and finding that line of, you know, where is the where is the lane for the employer where there is no liability on either side of that equation?

00;11;14;00 - 00;11;17;14
Rufino Gaytán 
And that is a very fine line if not an impossible one to walk.

00;11;17;24 - 00;11;21;19
Tom Godar
Yeah, that's. That's threading the needle quite carefully. Rufino,

00;11;21;19 - 00;11;42;12
Tom Godar
thank you so much for this insights. What I'd like to do now is pause our recording and return to our next phase, where we talk about this impact not only on those who have union representation, but on those who, like most of our clients and most of the private sector. Employers in the country do not have union representation.

00;11;42;12 - 00;11;47;06
Tom Godar
And learn a little bit more about how this new ruling by the National Labor Relations

00;11;47;06 - 00;11;47;20
Tom Godar

00;11;48;04 - 00;12;01;07
Tom Godar
affects them. So let's go cut off here and run into part two in another week or so. Rufino, thanks again so much and we'll be with you shortly. Take care, friends. Thanks for joining us on the Labor Law Insider.


Thomas P. Godar

Of Counsel

Rufino Gaytán III

Senior Counsel