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Thought Leadership

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



In this episode, the second of two, host Tom Godar and guest Rufino Gaytán continue to discuss the impact of the National Labor Relations Board’s Lion Elastomers decision, allowing problematic behavior to be wrapped in the cloak of protected behavior. Rufino offers insight on the application of this decision to non-unionized employers and steps to be taken to decrease the chances that a claim for protected behavior would be successful before the NLRB. We also explore the difficult balance between the risk of a claim and the need for an employer to protect its culture and values by disciplining employees who may be acting outside of the employer’s standards.

The discussion highlights that having a consistent application of employer policies, providing discipline in the context of uncivil behavior even when not remotely connected to protected concerted activity may help establish a guideline for analysis of an alleged unfair labor practice. While the NLRB will not make its decision based on the subjective intent of the employer, the lack of consistency in application of a policy will surely facto into any conclusion that discipline in a potentially protected area is unlawful.

When witnessing such behavior, Rufino makes it clear that it is very fact specific and that one activity of a profane objection on behalf of many in the workforce may be protected, but when it turns into threatening behavior, it may lose its protection altogether. Nevertheless, the employer may work to defuse such heated exchanges through suspension and later review, seeking the core basis for the outburst rather than discharging an employee in the heat of the moment.

Most importantly, Rufino suggests that the employer must carefully adhere to its core values that would not allow certain behavior to go unchecked when balancing this against the risk that an NLRB review might find that same behavior to be protected and concerted activity. At that point, it may be wise to consult counsel on the latest reading of this changing area of law and how it affects employers’ desire to keep the workplace civil and safe.

Read the Transcript

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

00;00;02;22 - 00;00;15;12
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 expertise

00;00;15;22 - 00;00;17;27
Tom Godar
and experience regarding labor

00;00;17;27 - 00;00;49;12
Tom Godar
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. 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.

00;00;50;10 - 00;01;05;01
Tom Godar
What 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;06;14 - 00;01;27;17
Tom Godar
Hey, welcome once again to the labor law insider. Great to have you with us. And once again will be joined by my colleague and friend and thought leader Rufino Gaytán, who has joined us to talk about the impact of a new decision from the National Labor Relations Board that is really taking the idea of civility in the workplace.

00;01;27;17 - 00;01;48;14
Tom Godar
That segment doesn't have to be that civil. As long as you're engaged in protected, concerted activity, you can be pretty uncivil and pretty nasty in some of the ways you express yourself last time we talked about this, Rufino and I spent most of our time talking about the decision and where it comes up within the context of a union employer.

00;01;48;24 - 00;02;15;13
Tom Godar
We're going to start this phase of our discussion regarding how it might impact those many of you who are not engaged with relationships with unions. And we talked about those who have, generally speaking, union representation or maybe a picket line is put up in the context of organizational picketing for a few days or informational picketing. But what about just the day to day?

00;02;15;17 - 00;02;44;20
Tom Godar
We know that only you know, 6% of the private sector employers are organized or thereabouts. So 94% of the employers and probably a large percentage of those that we regularly work with are not organized. So they're not going to talk about picket line misconduct, except in the most unusual circumstances. How does this ruling potentially have an impact upon the vast majority of employees and employers who don't have organized union recognizing workforces?

00;02;45;09 - 00;03;20;05
Rufino Gaytán 
Well, I think, you know, for for the non-unionized employers, you know, ultimately, those employers might have a little bit more leeway. It's possible that their workforces aren't as in tune with some of these issues as the the employees who do have union representatives. But, you know, I think ultimately what this one of the things that this should bring to the top of the priority list for a lot of clients, especially non-unionized workplaces, is train your supervisors.

00;03;20;06 - 00;03;51;10
Rufino Gaytán 
Let's talk about what you can do on a daily basis to get ahead of some of these potential issues and disruptive scenarios. You know, documentation of misconduct outside of a protected setting is always critical because in my experience, the employees who engage in this type of behavior that we're talking about, whether it's in a protected setting or not, they're usually doing it more often than some of the cases lead us to believe.

00;03;51;22 - 00;04;12;16
Rufino Gaytán 
And so if you've got a supervisor who knows, okay, this employee is again engaging in this type of behavior, I'm going to write it up. I'm going to make sure that I create a document to address the issues. And then when they happen to do it in a protected setting, at least this board is telling employers you can't discipline them if it's in a protected setting.

00;04;13;01 - 00;04;39;25
Rufino Gaytán 
Okay, maybe you don't do anything about that. But one that when that employee, again engages in similar behavior outside of a protected setting, then you can act on it because you've created the documentation. Ideally, you've given the employee sufficient guidance about what he or she is supposed to do and not do. And then when they violate those expectations, you have a legitimate basis for the for the discipline, you know, and what that discipline is can vary.

00;04;39;25 - 00;04;49;07
Rufino Gaytán 
It doesn't always have to be termination. It can be a suspension. It can be something else that is short of of dismissal.

00;04;49;07 - 00;05;24;09
Tom Godar
So law school exam 2 p.m. towards the end of shift non-unionized workforce employee is just hanging around the water cooler, if you will, and supervisor walks by and says, Hey, go to get back to work. What are you doing hanging around here? And the guy shouts a string of profanities and says, Nothing you do here. I can get it right every time anybody around here is doing anything that is not right around your alley, you're hanging something around their head.

00;05;24;14 - 00;05;32;12
Tom Godar
I'll tell you what. I'll see you after the shift. You come out towards my car, we'll work this out. Then what do you do, that heated.

00;05;32;12 - 00;06;00;23
Rufino Gaytán 
Moment? Well, you know, according to the board, nothing, right? There's nothing. The employer can do. But unfortunately, framing the discussion in the way that employee did, like it's not just about me, he said, you know, anybody around here does anything that you don't agree with we're getting in trouble or shouted at. That is arguably protected concerted activity. He's not just complaining about his own lot in life, but everybody else, the coworkers.

00;06;01;27 - 00;06;25;10
Rufino Gaytán 
The problem, of course, becomes that last part of the commentary, right? It's it's a threat. A veiled one at best, but it's probably a threat of violence. I think in that scenario, at least under the current state of the labor law, the best outcome for that supervisor would be to tell that employee, Hey, I think you need to just cool off a bit.

00;06;25;28 - 00;06;52;03
Rufino Gaytán 
Let's talk about what's getting you so heated in this particular moment. Why don't you just go home right now? Go home, come back. We can talk about this tomorrow, you know, address it in that way so that you're not immediately taking a corrective action. There is no unfair labor practice because there has been no corrective action issued to that employee and figure out what what the underlying issue is for that employee.

00;06;52;10 - 00;07;11;17
Rufino Gaytán 
Now, of course, if you know, if if the threat is so severe that the supervisor thinks, okay, this, you know, let's let's say the employee added at the end, and I've got a gun in my car and I'm going to see how fast you can run away from this bullet. That's very problematic, right? If that.

00;07;11;26 - 00;07;14;07
Tom Godar
Happens, it's problematic under any standard.

00;07;15;07 - 00;07;50;03
Rufino Gaytán 
Under most standards. And, you know, ultimately, unfortunately, I think the takeaway for a lot of employers should be, you know, what are your core values as an organization? And does this behavior by the employee run contrary to those core values? And if the answer to that question is yes, I think the employer has to make a decision about whether they want to tolerate this behavior to avoid an unfair labor practice or say, you know what, we'll take our licks with the board if it means we have to.

00;07;50;23 - 00;08;19;23
Rufino Gaytán 
But we cannot let this employees behavior go unchecked. And we're going to do something about it. And I think there's two sides of that coin, two risk assessments to make. But ultimately, if your core values say you have to do something about this behavior, that something is termination, then maybe that's the way you go. But as long as you do it, knowing that there is a risk, I think that's ultimately all that's going to matter.

00;08;19;29 - 00;08;58;25
Tom Godar
Well, and if you have a policy as well as a value and a mission statement and the policy says that whenever there's a threat of physical violence, that you then separate the employee from the workplace and call 911 or whatever that policy says. Even though I understand the board to say your subjective intent is not going to be the basis of our decision, I believe that that kind of thing is helpful if you can articulate that violation and the employee's knowledge of it, even if they try to wrap themselves into the protected concerted activity, I think it's helpful.

00;08;58;25 - 00;09;25;02
Tom Godar
And some of these you know, let's be honest, a lot of these things never get to a board case. They're going to be resolved nine times out of ten before they get there. And that's going to be helpful to the board age. And it's going to be chagrined to try to say that a threat of violence is going to be okay, that these people are people they and they're in a workplace and they understand that even that sort of doctrinaire idea of being pro-union doesn't allow anything goes at the workplace.

00;09;25;07 - 00;09;53;05
Rufino Gaytán 
Yeah, I agree. And you know it. Living in the world that we currently live in with with the violence that we've seen over the last several years, you know, I think that the board would be hard pressed to allow an employee to make severe threats in the workplace simply because they were talking about you know, they're complaining about how much they make per hour or the lack of PTO or insufficient PTO or whatever it is.

00;09;53;05 - 00;10;20;20
Rufino Gaytán 
Right? Yeah. Is it is that a protected communication? Sure. You know, you can give it protection, but at some point we do have to draw a line where that line is. Unfortunately, you know, the it's not clear at all. And so I think that clients and employers have to make those decisions again based on what their priorities are going to be, what their core values are, their culture that they want to create in their workplaces.

00;10;21;02 - 00;10;29;15
Rufino Gaytán 
And sometimes those decisions are going to come with a level of risk, and it's up to every employee to make a decision about how much risk they're willing to take on.

00;10;29;28 - 00;10;58;24
Tom Godar
Well, I appreciate that. And I think that's a part of the underlying message, is that the world became a little bit less certain for our employers and for the employees, of course, as to whether they're walking into a zone of protection or not. And certainly referred to, you know, or my colleagues or me, if you've got questions about that, and it's early enough in this game that we may not say with 100% certainty, here's what you can do, but we can help.

00;10;58;24 - 00;11;27;11
Tom Godar
And you can certainly analyze this as well. Under the idea protected concerted activity. The other part of this that we'd love to hear from you, go ahead. Let us know. Let your friends know if you'd like the podcast, but also let us know if this raises issues that you'd like us to discuss on the labor law. Insider And this or any number of areas that continue to emerge as real, practical issues that we get to consult on and help with sometimes.

00;11;27;11 - 00;11;51;00
Tom Godar
Then you get to deal with every day as employers and consultants to and friends of employers. So thank you so much, Rufino, for joining us. Love your insights. Thank you so much for staying up on what's happening even now. Just first decision, where are we going with it? So much thoughtfulness in your comments and thank you for listening to us today on the Labor Law Insider. Take care.


Thomas P. Godar

Of Counsel

Rufino Gaytán III

Senior Counsel