Recent Decisions by the NLRB: Harsher Penalties for Employers Who Repeatedly Violate Labor Law, More Leniency for Worker Outbursts during Labor Action

By Jenny Lee, Michael Warner and Tracey Truesdale - Franczek P.C.

June 1, 2023

As expected, in the last month the National Labor Relations Board has continued to issue decisions that reverse Trump-era precedents and expand the protections available to employees and unions. In Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) (NAP II), the Board ordered a wider range of harsh remedies for an employer who repeatedly violated the National Labor Relations Act (NLRA) during union negotiations. In Lion Elastomers LLC and United Steel, 372 NLRB No. 83 (2023), the Board overruled a Trump-era decision and returned to earlier Board precedent that restricts the ability of employers to discipline or terminate employees who engage in offensive behavior during union-related activity. Both rulings reflect the continuing pro-worker, pro-union trend in the Board’s recent decisions and require employers to take a more cautious approach when negotiating with labor unions or disciplining employees who engage in offensive behavior during labor activity.

Additional penalties for employers who are repeat violators of labor law

In Noah’s Ark Processors, the Board affirmed an administrative law judge’s findings that the employer violated the NLRA by bargaining in bad faith with the union. The parties had been involved in a contentious series of bargaining negotiations since 2018 that resulted in multiple injunctions, contempt findings, sanctions, and unfair labor practice charges against the employer. The Board declared that “[t]he essence of bad-faith bargaining is a purpose to frustrate the possibility of arriving at any agreement,” and found that the employer in this case had clearly bargained in bad faith.  

Based on the employer’s numerous and repeated violations of the NLRA, the Board ordered additional penalties beyond remedies that the Board has historically ordered, such as back pay. Additional remedies included having the employer post an explanation of rights document, having the CEO or Board agent read the document to employees, having the CEO sign the document, and having a Board agent conduct an inspection visit to ensure the document was properly posted on the employer’s bulletin board. While additional remedies are not unprecedented, the Board signaled in the case a renewed willingness to consider such remedies in future cases involving repeat labor law violators.

Greater protection for worker outbursts during union activity

In Lion Elastomers LLC, the Board revisited the hot-button issue of when an employer can discipline an employee who make offensive comments while engaging in protected activity. In this case, a long-time employee and union representative was ultimately fired after engaging in profanity-laced verbal altercations with management on two occasions. In one instance, the employee became agitated and confrontational when he was being questioned about grievances he had filed on behalf of other employees. The second time, the employee had an outburst at a manager while making complaints about working conditions. The employer argued that the employee’s profane outbursts were not protected under the NLRA, even if they took place during union activity.

The Board disagreed. In its ruling on the case, the Board overturned an employer-friendly decision issued by a Republican majority Board in General Motors LLC, 369 NLRB No. 127 (2020), which had found that an employer didn’t need to tolerate offensive conduct by an employee simply because the conduct occurred during the course of protected activity. In General Motors, the Board found that an employer’s discipline of an employee who engaged in offensive conduct was generally lawful as long as the discipline was not due to the employer’s anti-union animus.

In Lion Elastomers, however, the Board rejected General Motors and returned to their earlier decision in Atlantic Steel 245 NLRB No. 814 (1979), in which the Board had adopted four context-specific factors—including whether the worker outburst was provoked by the employer’s unfair labor practice—to analyze whether an employee lost the protection of the NLRA during an outburst at management.  

By returning to a context-specific standard, the Board in Lion Elastomer determined that each worker outburst needed to be evaluated on a case-by-case basis, and that a worker’s outburst during NLRA-protected activity had to be evaluated in conjunction with the protected activity. The Board stated that using a context-specific standard “ensures that adequate weight is given to the rights guaranteed to employees by Section 7 of the [NLRA], by ensuring that those rights can be exercised by employees robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.” The dissent, however, argued that granting more leeway to offensive behavior would make it harder for employers to discipline workers who violate anti-discrimination laws.  

Takeaways

Employers should take note of the Board’s holdings in these decisions. When engaging in union negotiations, employers need to be aware that repeated bad faith bargaining violations may result in additional and more onerous penalties than in the past. Before disciplining an employee for engaging in offensive behavior, even behavior that may implicate the employer’s harassment and EEO policies, the employer must consider whether the behavior takes place within the context of protected labor activity. Protected venues include, but are not limited to, grievance hearings, picket lines, safety discussions, bargaining negotiations, and union publications. We know these can be difficult issues to assess, so please reach out to a Franczek attorney if you have any questions.

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