In its quest to remain relevant, the NLRB has issued many decisions over the last several years that impact both unionized and union-free companies. More and more, union-free companies are finding themselves on the wrong end of Unfair Labor Practice (“ULP”) charges. It seems that no company is outside the reach of the NLRB. It has become the last bastion of hope for problem employees. A perfect example is the Constellium Rolled Products Ravenswood, LLC decision. In that case, the NLRB ruled that a company unlawfully fired an employee for writing “whore board” on an overtime sign-up sheet. The Board’s rationale was that the employee was engaging in “protected concerted activity” when he vandalized the paper. The NLRB considered the location, subject matter, nature of the outburst and whether it was provoked by the employer’s unfair labor practice in reaching that decision. The Board rationalized that “although Williams’ word choice was harsh and arguably vulgar, it reflected his and his coworkers’ strong feelings about the ongoing dispute related to the overtime policy.” Among other remedies, the employee was awarded reinstatement and full back pay. While Constellium Rolled Products has a union, this decision applies equally to union-free companies. Employers who plan to terminate an employee for inappropriate workplace behavior are wise to also consider the potential NLRA implications before making a final decision. This is consistent with the process employers already use to make sure the termination decision does not run afoul of Title VII or any other discrimination law.
Not all of the news coming out of the NLRB is bad for employers. On August 1, the NLRB announced that it is reconsidering the Obama-era rule that allows workers to use company email systems to send union-related messages to coworkers. If this rolls in employers’ favor (and given the composition of the NLRB right now, odds are good that it will), it will allow employers to regain control over their email systems. The NLRB invited interested parties to submit briefs on the issue. Cross your fingers, but don’t hold your breath – it will likely be 2019 before a decision is issued!
