NLRB Reaffirms Obligation to Bargain Over Pre-Contract Discipline But Also Establishes a Burden-Shifting Defense

The Board found that the discharges in Total Security met the standard established in Alan Ritchery for pre-imposition bargaining and that no such bargaining took place. The board declined, however, to order retroactive enforcement of its decision, holding that such enforcement would constitute manifest injustice.

Total Security also set forth, for the first time, the remedies available for future Alan Ritchey violations. In addition to standard remedial relief, i.e. cease and desist orders, a requirement to bargain, and notice-posting, the Board opined that make-whole remedial relief, including reinstatement and back pay and purporting to settle the pre-discipline bargaining violation would be subject to review under the Board’s standards for non-Board settlement agreements if challenged. In the event the parties post-violation bargained in good-faith to impasse over the discipline, back pay would run until the date of impasse.

Such make whole relief would be subject to an employer’s affirmative defense that the discipline was “for cause” under the Act. This new “for cause” defense places the burden on the employer, during the compliance phase of the case, to show “(1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge.”

The burden of proof then shifts to the charging party to challenge the employer’s showing by demonstrating, for example, discipline for the same behavior or other reasons for leniency. The employer may rebut such evidence by proving that the employee would have received the same discipline regardless. The ultimate burden of persuasion remains, at all times, with the employer.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Judge Condemns NLRB’s Tolerance for Racist and Sexist Behavior by Strikers

The DC Circuit Court of Appeals largely upheld the findings of the National Labor Relations Board that the employer unlawfully terminated and/or suspended a number of employees for strike-related misconduct. But, a concurring opinion notably took the NLRB to task for “the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.”

In one of the relevant incidents, the Board concluded that a striker grabbed his crotch and made obscene and intimidating gestures toward a female employee reporting to work.  But, per the NLRB, this behavior was not sufficiently egregious to warrant the suspension imposed by the employer following the strike. On review, the DC Court of Appeals held: “Given the rough and tumble nature of picket lines and the fleeting nature of the striker’s offensive misconduct, we cannot conclude that the Board erred in its assessment of the objective impact of this particular conduct in this instance.”

The concurring opinion catalogs recent examples of the Board’s countenance of racial epithets, and cases permitting misogynous vulgarities directed at women. In the judge’s view: “Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status. While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.