Labor Relations Insight by Phil Wilson
The Return of Workplace Civility?
Do you get the feeling that in 2020 everything is
dialed up to 11? I sure do. Our country (and the world) face high-stakes issues. Things are emotional. And every conversation seems to have more at stake.
There has never been a bigger need for companies (at least the ones fortunate enough to continue to operate) to foster an environment where teammates can have a civil conversation at work. The NLRB took a big step forward by rationalizing its approach to workplace civility cases this week in its
General Motors decision.
The key issue at stake in
General Motors is when (if ever) an employer can lawfully enforce its workplace civility rules. In this particular case a union official repeatedly verbally abused, including threats, members of management. These tirades occurred at work in front of others.
The Board also looked at other situations that have come up over the last several years: racial slurs shouted on a picket line, swearing out a company owner during a meeting, or vulgar social media posts about a manager. Over the last decade the decisions in this area became harder and harder to understand. If there was any concerted activity around the time of the abusive comments the Board would find the abuse lawful. At the same time, almost any complaint was found to be concerted activity. All three of the fact scenarios listed above (yes, including racist slurs) got protection.
These cases rest on the idea that there is no way to analytically separate the abusive language from the concerted activity, and that the protections of the Act trump any attempt by the employer to enforce civility rules. The Board in
General Motors took down both pillars of this argument.
First, they explain that it’s absurd to say that you can’t separate verbal abuse from concerted activity. It is entirely possible that an employee could be engaged in protected activity and lose that protection by violating a neutrally enforced civility rule. Even the cases overturned by
General Motors do this.
The main difference between
General Motors and the confusing batch of cases it overturns is the way they focused on the context of each event. These results-oriented decisions gave each situation its own test focused only on whether the employee’s actions were egregious enough to lose protection of the Act. Predictably, this led to a slippery slope of more and more outrageous conduct being protected.
The situation got so bad that it put employers in the awkward position of choosing to violate Equal Employment Opportunity statutes in order to avoid liability under the National Labor Relations Act. The idea that you can’t discipline an employee for making racist comments just because they happened to make them on a picket line is disastrously bad policy.
General Motors fixes that.
The
General Motors decision returns these cases to the long-established and easily understandable
Wright Line test. Instead of focusing on when an action becomes so abusive that it loses protection of the Act, it instead focuses on whether the employer’s action was motivated by union animus. These cases use a burden-shifting model that is common in EEO cases. First the General Counsel must establish that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, proven with evidence that establishes a causal relationship between the discipline and the Section 7 activity. If the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity.
The
Wright Line framework achieves the clear purposes of protecting concerted activity while at the same time preserving the right of an employer to provide a civil and inclusive place to work. In 2020 this balance has never been more important. As former Member Johnson stated in his
Pier Sixty dissent:
“The challenge in the modern workplace is to bring people of diverse beliefs, backgrounds, and cultures together to work alongside each other to accomplish shared, productive goals. Civility becomes the one common bond that can hold us together in these circumstances. Reflecting this underlying truth, moreover, legal and ethical obligations make employers responsible for maintaining safe work environments that are free of unlawful harassment. Given all this, employers are entitled to expect that employees will coexist, treating each other with some minimum level of common decency.”
“Treating each other with some minimum level of common decency,” is not a very high bar. It shouldn’t be a legal minefield for employers to provide a workplace like that. That is more true today than it’s ever been. The
General Motors decision finally gives clarity to employers and encourages them to do just that.
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Union Bailout Update
The NLRB General Counsel has
provided guidelines for the handling of in-person elections. The protocols were developed collaboratively with Regional Directors, the NLRB Division of Operations-Management, the NLRB COVID-19 Task Force, and the internal union representing NLRB employees. Although the memo promotes the guidelines as “suggestions,” expect Regional Directors to hold manual elections based on
these health and safety protocols.
As was expected, unions, along with several Democrat allies, are using the pandemic to renew their
push for electronic elections. A House bill that mirrors the electronic system used by the National Mediation Board currently has 45 sponsors.
OSHA has published guidance on maintaining safe workplaces relative to Covid-19, recommending
face masks but not mandating them, and distinguishing PPE that meet OSHA workplace requirements from pandemic facemasks.
In the recent
Care One decision, the NLRB
reversed a 2016 decision that required employers to bargain with a newly-certified union prior to imposing “serious discipline” before the employer and union reached an initial collective-bargaining agreement. The decision returns to employers the ability to impose discipline on newly unionized employees not yet subject to a CBA without first notifying and bargaining with the union, including discipline that may involve managerial discretion.
The NLRB General Counsel has taken another step to
make unions accountable for violating their duty of fair representation of members. In prior memos (2018 and 2019) GC Peter Robb made clear that unions should have in place a grievance tracking mechanism to protect against meritorious fair representation claims. This
latest memo announces that he intends to ask the NLRB to overrule its current standard for proving an individual’s entitlement to make whole relief against a union, creating a more lenient make-whole damages standard.
The NLRB recently cited workplace safety and proper use issues in
upholding work rules reinforcing an employer’s right to monitor and/or search personal vehicles or property on company premises, including company-provided electronic devices.
It may seem like semantics, but the D.C. Circuit Court reminded the NLRB that a proper Weingarten request must contain an actual “request.” In
Circus Circus Casinos, Inc., the NLRB charged the employer of violating the NLRA upon an alleged statement from an employee that he “called the Union three times [and] nobody showed up, I’m here without representation.” Although the NLRB found that the employer violated the Act by denying Weingarten representation, the court said
this would not be considered a request for such representation.
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Laboring Toward 2020
The Biden campaign has released a
110-page document ahead of the Democratic National Convention with policy recommendations, including calls for the passage of the PRO Act, card-check elections, a ban on right-to-work laws and forced arbitration agreements, and a host of other labor and employment reforms proposed by the
Clean Slate Project to expand the power of labor unions.
The SEIU has announced that it will launch a $150 million effort in 40 states in support of the Biden campaign. The “Essential for Joe” campaign will center on text messaging and social media, with the objective to
reach 6 million voters.
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Healthcare
The New York State Nurses Association is pushing local hospitals to turn over statistics on Covid-19 in nurses. The union, which represents 42,000 workers statewide, has also been busy filing
unfair labor practice charges against many of the local hospitals for allegedly not providing proper PPE.
Speaking of which, FEMA Administrator, Pete Gaynor, told lawmakers this week that the U.S. could face
shortages of PPE in areas where the number of Covid-19 cases are rising. While we are in better shape than we were at the end of March and April, a surge in demand in states with growing hospitalizations could cause ‘micro-shortages,’ he said.
Another former member of the Service Employees has filed
federal charges against the union for continuing to deduct dues from his paycheck after he tried twice to end his membership with the union.
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SCORE BOARD
Who are the winners (and losers) of the labor movement? Don't guess, just check the LRI Scoreboard
View this month's scoreboard (archives also located here).
Download a PDF of this month's scoreboard
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Union Organizing
Zoom and other virtual platforms have become a lifesaver to industries across the globe as we continue to navigate the Covid-19 pandemic. Unions are no different. From regular membership meetings to annual conventions, organizing attempts, and sessions discussing contract language,
the union hall has gone virtual.
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Union Corruption
Harold Schaitberger, the longtime president of the country’s largest firefighter union (IAFF), has been accused by the union’s treasurer of
embezzling more $1 million from the union pension fund. Schaitberger is also known for being a spokesperson and advisor to Joe Biden’s campaign.
Early this month, the former president of United Food and Commercial Workers Local 1208, was sentenced to 14 months in prison, and ordered to pay full restitution for conspiracy, for
embezzling around $213,000 from the union, which represents about 3,600 Smithfield employees in the Carolinas.
In New York, the president of the Law Enforcement Employees Benevolent Association (LEEBA), was charged with
defrauding the LEEBA annuity fund of more than $500,000 following his arrest. Separately, the union’s treasurer was charged with obstruction and making false statements in the case. Both of these charges come as a result of a joint probe into the union by the FBI, the IRS, the U.S. Labor Department and the City Comptroller’s Office.
Lastly, federal prosecutors met with UAW leaders to negotiate a deal that might help the union avoid government oversight after
years of corruption.
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It’s All Academic
Teachers unions across the country are
pushing back against the decision to
reopen schools in the fall. We will no doubt continue to see negotiations with
teacher unions as a key challenge to navigating this critical issue.
The Immigration and Customs Enforcement agency (ICE) announced on July 6 that college students on visas would not be allowed to stay in the U.S. for the fall semester if their institution is only going to offer online classes. Harvard College and the Massachusetts Institute of Technology filed a lawsuit a few days later to block the directive. Graduate student unions representing 600,000 student workers
filed a brief in support of the suit.
The City University of New York laid off 2,600 adjunct professors and part-time staff due to the economic downturn. In response, the union representing the employees
sued the university this month.
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Minimum Rising
A number of state and local minimum wages were set to increase on July 1, 2020. While most moved forward with the minimum wage increase, a few small jurisdictions considered postponing the increase due to Covid-19. Some of the increases include:
- Illinois: $10/hour
- District of Columbia: $15/hour
- Nevada: $9/hour
- Chicago: $13.50/hour or $14/hour depending on employer size
- San Francisco: $16.07/hour
Click here for a more detailed list.
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Right-to-Work
Two years after the
Janus decision went into effect, which gave workers the right to choose whether or not they want to be a member of their workplace union, the four largest public sector unions have seen a
decrease in membership numbers for a combined loss of 340,000 workers. These unions include the American Federation of State, County, and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), the Service Employees International Union (SEIU), and the National Education Association.
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Sticky Fingers
Current charges or sentences of embezzling union officials:
-
Amber Blake – IAM: $39,159
- Kenneth Wynder Jr. – LEEBA: $500,000
- Scott A. Wilson – IUOE: $4,500,000
- Angel Garcia – ATU: $117,000
- Cathy Byers – AFT: $23,000
