Will New NLRB Stop Protecting Unlawful Employee Conduct?

Something is wrong when the EEOC can find an employer liable for tolerating racist or sexist remarks by employees, and the NLRB can find an employer liable for not tolerating racist or sexist remarks by employees. But that is the quandary employers are left with after eight years of watching the Obama NLRB change laws to protect unlawful employee conduct. Here are some examples that highlight this problem.

1. Cooper Tire & Rubber locked out employees until a new contract with the union was reached. One evening, a vehicle of African American replacement workers drove by the picket line. One employee picketer shouted admittedly offensive racial insults at them. As a result, Cooper Tire terminated the offending employee for gross misconduct. The union grieved the termination. At Hearing, the ALJ found the termination to be lawful. The union appealed the ALJ’s decision. The NLRB reversed the arbitrator and said that the racist comments, while offensive, did not reasonably coerce or intimidate employees in exercising their rights protected by the NLRA. Cooper Tire has appealed the decision, which is pending before the Eighth Circuit Court of Appeals.
2. The NLRB found a two-day suspension unlawful for an employee who grabbed his crotch and made a “mean and hateful gesture” while yelling the word “scab” at a female employee, and hitting her car mirror when she left work and crossed the picket line.
3. The NLRB also ruled against an employer that disciplined a union employee for profane, threatening, and insubordinate conduct during a grievance hearing. That employee repeatedly used the “F” word, referred to a supervisor using an obscenity, attempted to physically intimidate the supervisor, and declared that she could curse, say anything she wanted, and do anything she wanted. The NLRB concluded that the employee’s conduct, although “obnoxious,” did not cause her to lose protection of the National Labor Relations Act.
4. The NLRB found against a fast food sandwich shop for terminating an employee and warning another employee who hung posters in the store and nearby public places that depicted “sick” sandwich pictures and “healthy” sandwich pictures. The poster stated that since the employees did not get sick days, “We hope your immune system is ready because you are about to take the sandwich test.”
5. An employer was found to have violated the National Labor Relations Act when it terminated an employee who posted obscene phrase about a manager and his family on Facebook.

Hopefully once President Trump has appointed (and the Senate has confirmed) NLRB Members to the two open slots, that many of the NLRB’s recent decisions that fail to recognize the legitimate business needs of employers will be replaced with ones that balance an employee’s right with an employer’s desire for safe and appropriate workplace rules.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.