House Hearing Focuses on NLRB Decision That Made It Harder to Enforce Civility Rules

A National Labor Relations Board (NLRB) decision from last year that made it more difficult for employers to enforce civility rules was criticized at a June 12 hearing of the House of Representatives’ Health, Employment, Labor, and Pensions Subcommittee. Other NLRB decisions under the Biden administration were in the spotlight as well, as some witnesses and Republican representatives said they went too far, while House Democrats supported them.

“The Lion Elastomers LLC II decision expanded protections for union-backed workplace harassment, further eroding trust and cohesion between employees and employers,” said Subcommittee Chairman Bob Good, R-Va. “Under the new standard, it’s harder for employers to discipline workers who act inappropriately while engaging in union activity, even if that same behavior in another workplace setting would have consequences.”

Lion Elastomers LLC II Ruling

In Lion Elastomers LLC II, the board overruled its 2020 decision in General Motors LLC and returned to prior board law that applied various setting-specific standards to determine whether employers unlawfully disciplined or fired employees who were profane or abusive while protesting the employer or otherwise exercising their rights under the National Labor Relations Act (NLRA).

Under the Trump administration, the General Motors board had overruled: 1) the four-factor Atlantic Steel test, which governed employees’ conduct toward management in the workplace; 2) the totality-of-the-circumstances test, which governed social media posts and most cases involving conversations among employees in the workplace; and 3) the Clear Pine Mouldings standard, which governed picket-line conduct. The board concluded in General Motors that, regardless of the setting involved, the fundamental issue in cases involving abusive conduct in the course of NLRA activity is not the nature of the employee’s conduct, but rather the motive of the employer in taking adverse action against the employee.

In contrast, the Lion Elastomers board said that Title VII of the Civil Rights Act of 1964 and the NLRA aren’t general civility codes, and that discussions get heated in the context of union negotiations.

Dissenting NLRB Member Marvin Kaplan wrote that the old picket-line standard that the board was reviving had permitted “truly appalling behavior” to be protected by the NLRA. If the past is any guide, the board will now protect employees who engage in a full range of indefensible misconduct, such as voicing profane attacks and threats against supervisors in the workplace, posting social media attacks against a manager and the manager’s family, shouting racist epithets at other employees, or carrying signs that sexually harass a particular employee, Kaplan said, citing board opinions that preceded the General Motors decision.

“The interplay with anti-discrimination laws indeed deserves the board’s earnest attention,” he stated.

Other Criticized Decisions

Good also criticized the board’s Stericycle decision, which found that rules that make employees fearful of exercising their NLRA rights are unlawful, regardless of the employer’s intent in creating the rule. “The 2023 Stericycle decision limits employers’ rights to maintain neutral workplace rules,” Good said. “The decision’s interpretation of Section 7 of the NLRA hampers employers’ ability to protect their business and maintain order.”

He also highlighted the board’s 2023 Cemex Construction Materials Pacific decision, saying it was perhaps “the most troubling” and that it “fundamentally alters the union recognition process.”
Good said that Cemex allows unions to demand recognition from employers based on a claim of majority support, bypassing the secret-ballot election process. “This decision removes the democratic element of in-person, secret-ballot elections, replacing them with coercive measures that pressure employers into union recognition without proper verification,” he said at the hearing.

Subcommittee member Joe Courtney, D-Conn., said the hearing felt like “union bashing,” and he noted that unions enjoy a healthy amount of support among the public. He asked whether Cemex meant an end to secret-ballot union elections.

Eileen Goldsmith, a union attorney with Altshuler Berzon in San Francisco, responded, “The notion that Cemex eliminated the secret-ballot election is absurd.” She said that under Cemex, if there is a request for voluntary recognition when the union says there’s a majority supporting unionization, the employer can either grant union recognition, or the employer or union may file a union election petition.

House Education and the Workforce Committee Ranking Member Bobby Scott, D-Va., asked if the NLRA has adequate penalties.

Goldsmith said it has no penalties, just make-whole relief. The law does not have much deterrent power, she said.

Subcommittee member Mark DeSaulnier, D-Calif., called for the passage of the PRO Act to bolster employees’ rights.

However, former NLRB Board Chair John Ring, an attorney with Morgan Lewis in Washington, D.C., testified that the board was undoing precedent and “working to remake the NLRA into something the drafters never imagined.”
He predicted their interpretations would be rejected by courts and said that while “no one claims the NLRA is perfect, Congress makes the law, not the NLRB.”