Even With Labor Law, Union Rep Can Be Disciplined For Abusive Conduct

Employees disciplined or fired for hurling profane insults at supervisors — or using sexist or racist rhetoric in the midst of labor disputes — will have less legal protection, under a recent decision of the National Labor Relations Board (NLRB).

The decision came in a case involving Charles Robinson, a full-time UAW representative who repeatedly clashed with managers and supervisors at a GM assembly plant in Kansas City.

The NLRB panel said the ruling, which effectively narrows the circumstances in which abusive conduct in the context of labor disputes cannot be disciplined, should have broader application.

Previous rulings of the federal agency have provided different levels of protection depending on whether the conduct occurred in the workplace, on social media, or on the picket line. Those rulings, the three member panel of the NLRB said, “have failed to yield predictable, equitable results.”

The results, the agency said, could pit an employer’s obligation to respect the rights of union members with its obligation to honor certain laws. “In some instances, violations found under (the previous) standards have conflicted alarmingly with employers’ obligations under federal, state and local anti-discrimination laws.”

Steve Delie, the director of labor policy at the Mackinac Center for Public Policy, said the NLRB’s new standard of review in such cases will make it marginally easier for employers to discipline misconduct. They will have to show that the misconduct was egregious and that the discipline was unrelated to anti-union animus.

“It’s extremely difficult to discipline union members” for any conduct that arises in the context of a dispute over wages or working conditions, Delie said. “This empowers employers in really egregious circumstances.”

The Davis Wright Tremaine law firm said that under the new standard, “If the employer can adequately establish that it would have disciplined the employee regardless of what led to the outburst, the discipline should be found lawful.” Its analysis appeared on the website lexology.com.

But labor attorney Mark Gaston Pearce, a former chairman of the NLRB, told bloomberglaw.com that current leadership at the agency is watering down workers’ rights. “This is a classic example of throwing out the baby with the bathwater,” Pearce said, “The board is now instilling an attitude that if you want to keep your job you better be subservient.”

Robinson was suspended by GM on three separate occasions in 2017, with escalating durations of punishment, after conflicts with supervisors. In the first, a dispute over cross-training of employees, ended with Robinson telling a manager to “shove it up (his) f***** ass.”

In the second meeting to discuss use of subcontractors at the plant, Robinson responded to a request to lower his voice by switching to a mock 19th-century slave dialect and referred to a manager as “Master Anthony.”

A third incident occurred at a meeting six months later. Robinson threatened to “mess up” the same manager and started playing loud music on his phone with, in the words of the NLRB, “profane, racially charged and sexually offensive lyrics.” An administrative law judge found that Robinson was unjustly disciplined in the first incident, but upheld suspensions for the other two.

The NLRB’s latest ruling said the agency’s recent record of assessing discipline on a case-by-case basis, adjusted for the circumstances in which the conduct occurred, had led to uneven application of labor law.

Earlier decisions penalized employers “for declining to tolerate abusive and potentially illegal conduct,” according to the July 21 ruling. In one case, employees were deemed immune from discipline after posting on Facebook that a manager was a “NASTY MOTHER F*****.” In another, a white employee on a picket line shouted at a black replacement worker, “Hey, did you bring enough KFC for everyone? I smell fried chicken and watermelon.”

None of the organized labor groups involved in the case appeared to have posted online commentary about the decision by Thursday afternoon. UAW headquarters in Detroit did not respond to an email request for comment.