Pittsburgh, PA
Legal Intelligencer
(by John McCreary)
Stare decisis is one of the fundamental principles of American jurisprudence. “It protects the interests of those who have taken action in reliance on a past decision.” Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, slip op. at 39 (2022). “’Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.’” Id. (quoting N. Gorsuch, A Republic, If You Can Keep It at 217 (Forum Books 2019). For the National Labor Relations Board (NLRB), however, stare decisis is often an impediment to desired outcomes, more honored in its breach than in the observance. The disregard for precedent likely results from the fact that the NLRB “is not a court whose jurisdiction over violations of private rights must be exercised. It is an administrative agency whose function is to adjudicate public rights in a manner that will effectuate the purpose of the [National Labor Relations] Act.” Guss v. Utah Labor Relations Board, 353 U.S.1, 13 (1957) (Burton, J. dissenting). The Supreme Court has recognized that administrative adjudication is a “’constant process of trial and error.’” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (quoting NLRB v. Seven-Up Co.,344 U.S. 344, 349 (1953). Indeed, the Court has observed that the trial and error approach “differentiates perhaps more than anything else the administrative from the judicial process.” Id.
The five members of the NLRB are appointed by the President, subject to Senate confirmation, and serve staggered terms of five years, “excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed.” 29 U.S.C. §153(a). The General Counsel of the NLRB is also appointed by the President with the advice and consent of the Senate to a 4-year term, and “is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases ….” https://www.nlrb.gov/bio/general-counsel; 29 U.S.C. §153(d). Consequently, the members of the Board and the General Counsel change at regular intervals and their respective views of how to effectuate the “purpose of the Act” reflect the policy preferences of the Presidents who appoint them; the Board and the General Counsel change their views of what the labor law should be with some regularity, depending on which constituency – labor or management – holds the majority of the Board or has appointed the General Counsel. The current General Counsel, Jennifer Abruzzo, soon after being confirmed in office issued Memorandum GC 21-04, “Mandatory Submissions to Advice,” in which she identified nearly 60 areas where she intended to try to reverse or modify the existing law, including 11 specifically identified as “Cases Involving Board Doctrinal Shifts.” https://apps.nlrb.gov/link/document.aspx/09031d4583506e0c. General Counsel Abruzzo’s desire to reshape the labor law is different in kind but not in degree from those of her Republican-appointed predecessor. The NLRB and its General Counsel are fundamentally partisan.
The doctrinal contests that result from the partisan nature of the Board are exemplified in the Board’s recent decision in Lion Elastomers, LLC, 372 NLRB No. 83 (May 1, 2023), where the Board overruled a decision from 2020 and reinstituted the rules that the 2020 decision had itself rejected. The cases all involved the frequently difficult issue of when employee activity otherwise protected by Section 7 of the National Labor Relations Act loses that protection because of misconduct. Section 7 of the Act grants employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities ….” 29 U.S.C. §157. Sections 8(a)(1) and (3) of the Act declare, respectively, that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7” and “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ….”
For years before 2020 the Board employed context-specific standards to assess whether employee misconduct vitiated Section 7 rights, thereby permitting the employer to discipline without running afoul of Sections 8(a)(1) and (3):
- Where the misconduct was directed at management in the workplace, the test articulated in Atlantic Steel test, 245 NLRB 814, 816 (1979) was used:
The decision as to whether the employer has crossed the line depends on several factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice.
- Discipline imposed for picket line misconduct was judged by the Board using the standard established in Clear Pine Moldings, 268 NLRB 1044 (1984), which considered “whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of their rights under the Act [to refrain from striking].” 268 NLRB at 1046 (quoting NLRB v. W.C. McQuaide, Inc., 552 F.2d 519, 528 (3d Cir. 1977)).
- When considering the propriety of discipline imposed for the use of profanity and other offensive language among employees, or in social media postings, the Board employed a totality-of-the-circumstances test. g., Desert Springs Hospital Medical Center, 363 NLRB 1824, 1824 n.3 (2016) (use of profanity during conversation about union election with another employee protected); Pier Sixty, LLC, 362 NLRB 505, 506 (2015) (Facebook posting calling supervisor “nasty m—–f—–” and urging “yes vote” in upcoming union election protected because “comments were not so egregious as to exceed the Act’s protection”).
As can be deduced from the descriptions of these tests, they were largely subjective, requiring the Board to assess the severity of the misconduct and weigh it against its potential impact on the exercise of Section 7 rights.
The subjectivity of the context-specific approach was abandoned in the Board’s 2020 decision in General Motors, LLC, 369 NLRB No. 127 (July 21, 2020): “[t]hese setting-specific standards aimed at deciding whether an employee has or has not lost the Act’s protection [ ] have failed to yield predictable, equitable results … We believe that, by using these standards to penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace, the Board has strayed from its statutory mission.” Slip op. at 1. In place of the context-specific approach, the General Motors Board substituted the “familiar Wright Line standard.” Id. Wright Line, 251 NLRB 1083, enf’d, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), adopted the test for deciding the legality of “mixed motive” disciplinary action articulated by the Supreme Court in Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274 (1977):
Under the Mt. Healthy test, the aggrieved employee is afforded protection since he or she is only required initially to show that protected activities played a role in the employer’s decision. Also, the employer is provided with a formal framework within which to establish its asserted legitimate justification.
251 NLRB at 1089. Application of the Mt. Health/Wright Line test involves shifting the burden of proof to the employer once the General Counsel has made out a prima facie case:
[W]e shall henceforth employ the following causation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employer’s decision.
Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.
Id. (footnote omitted). Thus, General Motors discarded considerations of context in favor of a more objective examination of motive in all cases involving the exercise of Section 7 rights and employee misconduct. Its rationale for so doing was that “abusive conduct that occurs in the context of Section 7 activity is not analytically separate from the Section 7 activity itself.” General Motors, 369 NLRB No. 127, slip op. at 1. The General Motors Board concluded that “where causation is at issue” Wright Line should apply. Id. at 2.
Less than three years later, after substantial turnover of Board members and appointment of a new General Counsel, the Lion Elastomers Board restored the subjective, context-specific approach to deciding Section 8(a)(1) and 8(a)(3) cases. In its view “[t]here is a fundamental difference … between employee misconduct committed during Section 7 activity and misconduct during ordinary work.” 372 NLRB No. 83, slip op. at 2. The decision rejected General Motors’ focus on employer motive because, it contended, focus on motive ignored the res gestae of the protected activity:
[C]onduct occurring during the course of protected activity must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context. [This principle] reflects a policy choice. It ensures that adequate weight is given to the rights guaranteed to employees by Section 7 of the Act by ensuring that those rights can be exercised by employees robustly without fear of punishment for the heated or exuberant expression of advocacy that often accompanies labor disputes, whether they are exercised by participating in contract negotiations, or grievance meetings, or walking a picket line as strikers and confronting employees who cross the line, or in discussing workplace issues with their coworkers.
Id. at 3. Lion Elastomers “overrule[d] General Motors and return[ed] to the Board’s setting-specific standards … As the Board did for decades, with judicial approval, we strike a different balance from the General Motors Board between the Section 7 rights of employees and the legitimate interests of employers.” Id. Or stated more imperiously, “the Board – not employers – referees the exercise of protected activity under the Act.” Id. at 11.
In the end, therefore, context matters again. Words or actions that would otherwise be grounds for discipline may ultimately escape sanction if expressed or undertaken during labor contract negotiations, grievance meetings or any number of other contexts in which employees engage in activity protected by Section 7. General Motors’ attempt to establish a more objective standard for deciding all claims of violations of Section 7 rights has been rejected in favor of the gnostic approach of the Lion Elastomers majority: in the appropriate context, as ultimately determined by the Board, an employer’s uniform application of the rules pertaining to civility in the workplace can be illegal.
John A. McCreary, Jr. is a shareholder in the employment and labor and public sector groups of Pittsburgh law firm Babst Calland. His practice spans the full range of issues encountered in the employment setting, including labor contract negotiation and administration, grievance arbitration, benefit plan issues, disputes over hiring practices, wrongful termination claims, as well as litigation over pension and benefit entitlements. Contact him at 412-394-6695 or jmccreary@babstcalland.com.
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Reprinted with permission from the May 25, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.