National Labor Relations Board Decides Against Protected Steward Status
Board Abandons Precedent Allowing Free Speech
Written by and reproduced with permission of:
Ralph M. Phillips, Esq.
Levy Phillips APC
July 30, 2020
Last week, the Trump Board in General Motors LLC announced another shot across the bow at unions by changing the standard under which it will evaluate discipline issued to employees, including stewards, who make abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity that would otherwise fall under the protection of the Act, such as at grievance meetings or discussions with management on the shop floor.
The burden-shifting standard announced yesterday applies not just to conduct in the workplace, but also on social media, or on a picket line where your Union alleges that the employer’s discipline against you was motivated by your protected activity and the Employer asserts it was motivated by abusive conduct. If the Employer can adequately establish that it would have disciplined the employee regardless of what led to the outburst, the discipline will now be found lawful.
In the past, employees taking part in protected concerted activity—actions taken to improve their wages, hours, or working conditions—have been “permitted some leeway for impulsive behavior” and the degree to which an Employer had to permit it was “balanced against an employer’s right to maintain order and respect.”
In the General Motors case, a union-represented employee repeatedly engaged in “profane and racially offensive conduct towards management.” The employee objected profanely to the lack of overtime coverage for employees away for training, portrayed managers as slave masters, made implied threats against managers, and, during a meeting, blasted music that contained “profane, racially charged, and sexually offensive lyrics.” Each incident led to progressively longer suspensions ranging from three to 30 days.
The Trump Board abandoned long standing precedent and determined that these issues should be treated the same as other discipline cases. Using what is referred to as the Wright Line test, the Board will follow the Wright Line burden shifting analysis allowing most discipline to stand.
In our view, even if the NLRB will no longer help us, Employers subject to a just cause standard still cannot prohibit employees’ engagement in protected concerted activity, must still enforce work rules consistently, regardless of the circumstances, must still document the specifics, cite the applicable rule or policy, and must still objectively review the facts to ensure the level of discipline was not motivated by the employee’s protected activity. In sum, we encourage you to be professional in your dealings with Employers, but maintain your strong positions as you do so.
Ralph M. Phillips, Esq.
Levy Phillips, A Professional Corporation
Ralph M. Phillips is a labor attorney that has dedicated his career to the practice of assisting working men and women through their chosen bargaining representatives. For more than 40 years Ralph has been representing his clients and their members through collective bargaining, grievance arbitration, dispute resolution, NLRB cases, litigation at the federal and state level, as well as labor-management trust funds throughout the state of California and elsewhere. a founding partner, along with Lewis N. Levy, in the labor law firm of Levy Phillips APC where he continues to represent his labor union clients and Taft-Hartley trust funds providing health and welfare and retirement benefits to thousands of Union-represented workers. Most recently, Phillips has been instrumental in expanding the firm’s practice and bringing his expertise in employment matters to individual plaintiffs in State and Federal wage suits and select wrongful termination matters.