NLRB: The Pendulum Swings Toward Common Sense


by Ruth Horvatich

rhorvatich@mcgrathnorth.com
(402) 341-3040

The National Labor Relations Board (the “Board”) is at it again. In recent months, the current Board has “revised” a number of unprecedented decisions that were issued by it under the previous Obama administration. This article highlights one significant change by the Board along with another that is in the works.

When Can an Employer Force a Union Agent to Leave Its Property?
The Board Establishes a New Test

In the case Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019), the Board announced a new standard for excluding non-employee union agents. The key issue in that case was whether an employer can exclude a non-employee union agent while allowing other organizations on its property to engage in the distribution of materials. Specifically, in the Kroger case, the non-employee union agent attempted to get customers to sign a statement indicating that they would not shop at either of the new Kroger stores unless the employees were allowed to transfer there with all the benefits they currently enjoyed as union members. Kroger management ordered the agent to leave the property. Previously, the store had granted access to such organizations as the Girl Scouts and the Salvation Army to fundraise on its property. Does allowing other non-employee activities on its property automatically prohibit Kroger from excluding the non-employee union agent? No[!], according to the Board.

The Board held that it will not find discrimination by exclusion of a non-employee union agent when the non-employee activities the employer permits on its property are not similar in nature to those that the employer has prohibited. More specifically, it held that protest and boycott activities by a union are not sufficiently similar in nature to charitable, civic, or commercial activities to warrant a finding of discrimination because the employer allowed those latter activities but not the union activity.

The Board even went one step further and held that it will also permit an employer to ban non-employee access for union organizing activity if it also bans comparable organization activities by non-labor groups, such as membership drives by fraternal societies or religious organizations.

The Kroger decision is very significant because of the fairly bright line approach it adopted in the face of a sixty-year history of interpreting property access rights in shades of gray. Before Kroger, an employer had to take a look at what charitable and civic activities it allowed on company premises, and if those activities are more than minimal, it had to make a decision as to whether it would reject the non-employee union agents and risk extended litigation with the Board. It was difficult, in many instances, to determine how much charitable and civic activity would be too much and force the employer to allow non-employee union agents on its premises for organizing or protesting company labor policies or practices. As a result, many employers excluded all charitable activities on company property. Under this new standard, the Board will now look to determine whether the charitable and civic activities are sufficiently dissimilar from the union’s activities, and has signaled in its Kroger decision that it will, at least apparently, usually rule that they are sufficiently dissimilar.

This decision is a win for employers. It allows employers to support charitable and civic activities on its property without running the risk of being also required to allow union protests on its property. Employers can also exclude a union which is trying to engage in organizational activities as long as it excludes other organizations, even though charitable or civic in nature, which are attempting to enlist members.

Profanity Directed at the Boss: How Much is Too Much?

In prior decisions under the Obama administration, the Board rejected employers’ arguments in a number of cases that the employers were justified in disciplining employees because of the employees’ profanity and vulgar statements directed at management or ownership. For instance, in one case, a union member called the owner of the business seriously profane names and told him that if he fired him, he would regret it. The Board found the employee’s statements to be protected activities and accordingly found the discipline issued by the employer to be unlawful.

A recent case is providing the Board with an opportunity to revisit this issue head on. In General Motors LLC and Charles Robinson, a union committee person told his supervisor, during a meeting in which the employee was engaged in union activity, that he did not give a f*%! about a company cross training program and that the supervisor could shove it up his f*%!&*$ a%!. The Board looked back at the number of cases in which workplace profanity had been allowed and asked interested entities to address the issues involved with the use of profanity in the workplace or during union activities. The Board has specifically asked for briefs to address five separate issues in light of previous Board decisions and the tests applied to the use of profanity, including the balancing of that profanity with the protected union or other activity being engaged in and whether such profanity is commonplace and tolerated in the workplace. The Board has also asked to what extent it should consider the context of the remarks, such as a picket-line setting or during bargaining, in determining whether racially or sexually offensive language loses protection.

The decision regarding workplace use of profanity, in particular, profanity directed at a supervisor or owner, is far from settled. But this recent case before the Board shows it is moving toward resolution. It is clear that the Board is taking a low key and reasonable approach to gathering information to be used during the course of deciding that issue. We will keep readers advised of the Board’s decision.

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