Legal Updates

Civility in the Workplace

 

What do the following real workplace incidents have in common:

 

  • A pro-union employee says to minority coworkers “go back to Africa” and “I smell fried chicken and watermelon.”

 

  • A union activist calls his manager “a nasty motherf***** and said f*** his mother and his entire f***ing family.”

 

  • In front of coworkers, a union Vice President screamed at his manager, “you are a bastard, redneck son-of-a-bitch.”

 

  • A union activist commenting to coworkers called the Vice President of Production “a stupid f***ing moron.”

 

 

What do they have in common? In each of these cases, the National Labor Relations Board in past years ordered the employer to reinstate the employees with backpay. Incredulously, the NLRB claimed that because the employees were engaged in union activity, they should be afforded leeway for impulsive behavior.

 

On July 21, 2020, the current National Labor Relations Board majority (all Trump appointees) brought civility back to the workplace. The NLRB ruled that it will no longer give special protection to offensive language or conduct in the workplace. This new decision eliminates the conflict with anti-discrimination laws and stops penalizing employers for complying with those laws and ends the unwarranted protection for employees who engage in obscene, racist and sexually harassing speech not tolerated in most workplaces today.

 

NLRB Chairman John Ring stated, “This is a long overdue change to the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace…our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and anti-discrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

 

 

 

Manual or Mail-in Ballot Election at the NLRB?

 

Manual, in-person balloting has long been the NLRB’s preferred method of conducting a secret ballot election because mail balloting is held under less-controlled conditions and, thus, more prone to irregularities. Often, mail ballot elections result in lower participation. Mail ballot elections also generally favor labor unions.

 

On July 10, 2020, the NLRB General Counsel in GC Memo 20-10 went on record as encouraging a return to manual balloting norm, offering a set of virus concern protocols that parties may use to bring elections back to the workplace and away from the U.S. Mail. In spite of this General Counsel’s memo, local Regional Directors of the NLRB continue to exercise their discretion in directing elections to be held by mail ballots, using the Chinese Coronavirus as their excuse. On August 25, 2020, in a decision in Aspirus Keweenaw, the NLRB granted the employer’s Request for Review of a mail ballot election and the employer’s emergency motion to stay the election.

 

In the particular case, the location of the election was a place where virus transmission is low. Additionally, both the employer and the union agreed to a manual election under GC Memo 20-10. Despite this, the Regional Director directed a mail ballot election. Therefore, a key question will be whether the NLRB Regional Director abused her discretion in directing the mail ballot.

 

Employer Social Media Rules are Upheld

 

On July 24, 2020, the NLRB found lawful an employer’s rule that prohibited employees from communicating to any customer or third-party any disparaging claim, “the effect of or intention of which is to cause embarrassment, disparagement, damage or injury to the reputation, business, or standing” of the company. Significantly, the NLRB observed that employers have a legitimate expectation of loyalty from their employees. In this case, the NLRB ruled that the employer’s justifications were self-evident, and the rule was reasonably drafted to warn employees that similar disparaging statements about it or its customers to customers and the public would not be tolerated.

 

In another case on August 7, 2020, the NLRB found lawful a social media policy requiring employees to be “respectful and professional when using social media tools…so as to effectively safeguard the reputation and interests” of the employer. Specifically, the social media rule prohibited employees from disclosing proprietary employer information and required employees to respect the rights of coworkers while not harassing, disrupting or interfering with another’s work performance and not creating an intimidating, offensive or hostile work environment. The NLRB ruled that employees would reasonably understand that the rule was made to safeguard the employer’s reputation and promote a healthy work environment, not chill employee rights.

 

 

 

 

Unfair Labor Practice Trial by Video Conference

 

In an August 13, 2020 decision, the NLRB upheld an Administrative Law Judge’s ruling that an unfair labor practice trial be conducted by video conference because of the Chinese Coronavirus Pandemic.

 

In-person testimony has been the standard for unfair labor practice trials for decades. Video testimony at unfair labor practice trials has been rare, but the rules permit it under “compelling circumstances.”

 

The employer objected to the ALJ’s ruling because unfair labor practice trials require a careful assessment of conflicting evidence and testimony by the ALJ. Viewing testimony in-person best allows the ALJ to observe a witness’s demeanor, as well as anything within the view of the witness including counsel and the parties. The employer also cited an NLRB rule that states the parties have “the right to appear at a hearing in person, by counsel, or by other representative.” The company also argued concerns involving credibility, technology issues, sharing and reviewing evidence, difficulties in cross-examination, and more.

 

The NLRB upheld the ALJ, acknowledging that while the virus concerns are somewhat reduced, the ALJ had the discretion to rule that the virus still amounted to “compelling circumstances” allowing the use of video. Significantly, the NLRB held that the “right to appear” cited by the employer merely means “the right to appear at the hearing at all, not the right to be physically present.”

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