An Evolving Tension: The NLRB, our Federal Courts and Civility in the Workplace

So what do a government agency, our federal court system and civility in the workplace have in common?  More than you might think, and this month’s Employment Law in Focus is intended to provide at least a beginning road map for navigating those issues.

It should first be said that the National Labor Relations Board (“NLRB” or the “Board”) is a federal agency whose sole existence is based on the employer-employee relationship.  In its own website words, the NLRB is “vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.”  In addition to those lofty goals, the NLRB has – according to many employers – unfortunately been an agency whose rulings over the past number of years have virtually endorsed incivility in the workplace.  How?  Simply stated, by shielding certain employee actions from disciplinary consequences under an ever-broadening interpretation of “protected, concerted activity” under the federal National Labor Relations Act (“NLRA” or the “Act’).

Protected, concerted activity refers to a provision in the NLRA that protects employees from adverse employment consequences based on having exercised certain workplace rights in a “concerted” manner (two or more individuals) to act for their mutual aid or protection regarding the terms and conditions of their employment.  Those terms and conditions are typically understood as wages, safety, policies & procedures, and other workplace conditions.  Significantly, those rights exist in both unionized and non-unionized workforces – so with the ever-declining union membership in the United States, the NLRB has revitalized its relevancy by addressing matters that don’t depend on whether a union actually represents employees of a particular company.  Combined especially with the impact of social media, where statements and writings by employees can be broadcast with the click of a computer mouse or a finger on a smartphone, then shared instantaneously with untold numbers of co-workers, management and individuals with no connection to either, certain actions that once existed only internally now have implications far beyond the walls of a corporate building.

So how has this led to civility concerns in the workplace?  Primarily through a series of NLRB opinions regarding disciplinary action taken against employees who, at least according to the employees and any union standing behind them, have done nothing more than exercise their purported protected, concerted activity “rights.”   However, certain examples of exercising those “rights” have also involved conduct that employers and even casual observers of common sense and decency have considered an outrage – all of which has led to courts upholding or reversing the disciplinary action, depending on the court, the law and the circumstances.

This tension between actions and comments that are protected by the NLRA and those that aren’t protected is perhaps best summarized by a well-settled principle that employees’ disparaging actions and comments lose the protection of the NLRA when they are “misleading, inaccurate or reckless or otherwise outside the bounds of permissible speech.”  Endicott Interconnect Technologies, 345 NLRB 448, 450 (2005) enf. denied in part on other grounds by Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 533 (D.C. Cir. 2006); see also Radisson Muehlebach Hotel, 273 NLRB 1464 (1985) (holding that an employer may lawfully maintain a rule that prohibits “malicious statements,” i.e. statements deliberately and maliciously made, with knowledge of their falsity or with reckless disregard of the truth.”).  Moreover, employers are entitled to establish rules to maintain a civil workplace, with the primary validity test being whether a reasonable employee would view a particular rule as supporting that proposition rather than viewing it as unlawfully prohibiting protected, concerted activity.  Costco Wholesale Corporation, 358 NLRB No. 106 (2012). 

All of that being said, a recent opinion from U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) helps illustrate the dynamics that affect court interpretations of what constitutes protected, concerted activity – and in the process, it provides some helpful guidance for employers.

In Pier Sixty, LLC, an employer discharged an employee for the “protected concerted activity” of cussing about a supervisor on Facebook two days before a union election. Among other things, the employee posted, “Bob [the supervisor] is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F**k his mother and entire f***ing family!!!!What a LOSER!!!! Vote YES for the UNION!!!!!!!” (Asterisks not in original.)

The NLRB, after adopting an administrative law judge’s factual findings, had applied a “totality of factors” standard to determine whether the conduct warranted protection under the NLRA or was so vulgar and offensive as to lose the Act’s protection.  Perhaps surprisingly to many in the business world, the Board majority found the outburst protected – and here are the primary reasons:  (1) the employer had previously tolerated similar comments without imposing disciplinary action; (2) none of the comments actually disrupted anything involving customers; and (3) according to the Board majority, the employer had already shown enough hostility to the union that it transformed the comments into part of the campaign debate about management conduct itself.

Although the Second Circuit did not endorse the “totality of factors” standard, and even though it acknowledged that the conduct at issue was “at the outer bounds of protected, union-related comments,” it nevertheless gave deference to the Board’s interpretation and its finding that the conduct was not so vulgar or offensive that it lost the NLRA’s protection.  The court also allowed for how the Board could have reasonably determined the conduct was part of the union campaign debate, how the employer had previously tolerated similar conduct,, and how Facebook was a key means for employee communications in the union organizing efforts. Despite the public social media posting, the court also found that it was reasonable for the Board to determine that the employee had not done anything disruptive in front of customers.

While that decision might prompt outrage in the business community, it should also serve as a reminder of how important it is for employers to have and consistently enforce rules regarding employee misconduct and insubordination.  Both the NLRB’s and the Second Circuit’s outcome may have been different if the employer had been able to demonstrate consistent disciplinary consequences for similar vulgar and offensive behavior, all of which depends on appropriate employer policies, procedures and their consistent enforcement in the workplace. 

Helping that potential, and what should give employers a bit more hope for more favorable Board and court determinations, is that a change in majority on the NLRB from Democrat to Republican should give employers a more level playing field in the future.  And that change may occur soon.  In fact, on June 20, 2017, President Trump announced the nomination of attorney Marvin Kaplan to fill one of the two open NLRB seats expected to go to Republican nominees.  Mr. Kaplan is counsel for a commissioner at the Occupational Safety Health and Review Commission, which hears occupational safety and health (OSHA) matters. Earlier this week, the Trump administration also announced the nomination of William Emanuel, a management-side labor and employment lawyer, to fill the other vacancy. After the nominees’ anticipated confirmation by the Senate, the five-member Board will have a Republican majority.  In addition, Chairman Philip Miscimarra, a Republican appointed by President Obama, has a term ending in December 2017, and he could accept another term if nominated.


This article was written by Kenneth P. Carlson, Jr. of Constangy, Brooks, Smith & Prophete, LLP with contributions by David Phippen of Constangy’s Washington DC Metro Office.