NLRB Returns to Former Precedent on Protected Union Activity

November 6, 2023

On May 1, 2023, the National Labor Relations Board (“NLRB” or “Board”) overruled its July 2020 decision that changed the standard for cases involving “abusive employee conduct” during labor disputes and negotiations, reverting back to a test that it used in some form or another for approximately 70 years. In its decision, the NLRB found that an employee did not lose National Labor Relations Act (NLRA) Section 7 protections when he used strong language and acted less than civil when raising grievances about working conditions.

Section 7 protects employees who engage in labor practices, such as forming unions and collective bargaining. Not all conduct is protected, however. The question before the Board was whether employees who exhibit abusive conduct while engaging in protected activity are afforded Section 7 protections.

Factual Background

From 2016 through 2018, a union employee raised numerous grievances regarding working conditions. In some meetings, the employee became engaged in heated discussions with management, resulting in discipline. In 2018, the employer presented the employee with a last chance agreement. The employee disagreed with the allegations, which related mostly to his use of inflammatory language articulating grievances. The employee refused to sign and was discharged.

In May 2020, the NLRB issued a decision determining that the employee was improperly disciplined and discharged for engaging in protected union activity, relying on a four-factor test it had used since 1979, which included the place of the discussion; the subject matter of the discussion; the nature of the employee’s outburst; and whether the outburst was provoked by the employer’s unfair labor practices. The Board found that the outburst was not provoked by the employer’s unfair practices, but since the other three factors supported the employee, the Board ruled in his favor.

On appeal two months later, the Board overruled its decision and the four-factor test, concluding that the relevant question when evaluating abusive conduct was whether the employer acted in good faith when taking adverse action. The Fifth Circuit granted the Board’s motion to remand to evaluate the impact of this decision, leading to the May 2023 decision where the Board reversed course again.

Legal Analysis

The Board criticized the test articulated in its July 2020 decision as giving the employer more power than workers; if an employer acted in good faith, it would not actually matter whether the employee engaged in protected conduct. The NLRB found that this violated Congress’ intent to protect workers and union-related conduct.

The Board concluded that employees must feel free to express their opinions without fear of retaliation when bargaining with employers. Furthermore, labor disputes, which often involve questions of livelihood and pay, are likely to promote strong feelings, which may be expressed in less-than-civil ways. The NLRA is not a civility code, the Board said, and a higher degree of, for example, inflammatory language should be tolerated when it relates to Section 7-protected activity.

Takeaways

The Board’s decision is a return to the way it has evaluated employee conduct in the context of labor disputes for some 70 years. While the decision provides employees with more freedom to use abusive language when engaging in protected activity, not all abusive conduct will be tolerated. The Board likely will continue to use the four-factor test in determining whether abusive conduct is protected. Nevertheless, employers should take care to thoughtfully evaluate any alleged abusive conduct by employees that may be protected by Section 7, document any alleged abuses, and consider whether they concern union activity before taking any adverse employment action.

The full article in its original form can be found here.

 

Sean Craig (LAW ’22) is a Business Litigation associate at Troutman Pepper where he assists on matters relating to employment, higher education, insurance, and more.