And you thought it couldn’t get any worse!

On July 21 the Trump-appointed National Labor Relations Board (NLRB) eliminated the special legal protections enjoyed by union grievance handlers for the past 70 years. In the interest of promoting workplace “civility,” the Board announced that employers will no longer be restrained from disciplining or discharging stewards or officers who use profanity or engage in other “abusive” actions in violation of an employer’s enforced code of conduct, even when these actions happen in the course of heated meetings with management.

The new decision, known as General Motors, overrules scores of NLRB rulings permitting grievance representatives to engage in “zealous” advocacy.

As far back as 1948, the Labor Board announced that:

The relationship at a grievance meeting is not a “master-servant” relationship but a relationship between company advocates on one side and union advocates on the other side, engaged as equal opposing parties in litigation.

In 1995, the Board said:

Some profanity and even defiance must be tolerated during confrontations over contractual rights.

In 1974, the U.S. Supreme Court added that the National Labor Relations Act (NLRA):

[G]ives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its points.

In 1981, the influential Fifth Federal Circuit joined in, stating that:

The [National Labor Relations] Act has ordinarily been interpreted to protect the employee against discipline for impulsive and perhaps insubordinate behavior that occurs during grievance meetings, for such meetings require a free and frank exchange of view and often arise from highly emotional and personal conflicts.

These rulings, and others, allowed union representatives to use “salty language” and gestures when making cases to management. Discipline was forbidden unless an outburst included extreme profanity, repeated racial epithets, or physical threats. This became known as “stewards’ immunity” or the “equality principle.”

CIVILITY TRUMPS ADVOCACY

General Motors complains that the earlier Board rulings failed to acknowledge the employer's right “to maintain order and respect.”

“Much more often than not,” said the Board, workers are able to resolve conflicts among themselves in a civil manner, without resort to profanity. Why shouldn’t they be required to handle disputes with employers in the same manner? Civility, the Board explained, is “the one common bond that can hold us together.”

Cutting through the noise, the Board is really telling stewards to show respect no matter what a manager says or does. This is the same approach mandated by the British Master-Servant Acts of the 18th and 19th centuries—with firings replacing imprisonment.

WHAT GENERAL MOTORS MEANS IN PRACTICE

General Motors discusses three union scenarios: grievance meetings, social media posts, and picket lines.

Grievance meetings. Grievance meetings are well-known flash points. HR personnel often goad union representatives with insults, jokes about vocabulary, or simply by playing dumb. At the same time, they defend trampling on the contract. It is not surprising that stewards become angry.

Before General Motors, “salty” responses such as “You’re talking s***” or “Stop acting like an a**h***” could not serve as grounds for warnings or more severe discipline. Under the Board’s new standard, employers can discipline militant leaders in the hope of sending a chill through the workforce.

Social media posts. Union members have historically been able to post vivid comments about managers on social media. After all, conduct outside the workplace is traditionally off-limits for employer discipline. In 2015, for example, the Board ruled that a company violated the NLRA when it discharged a poster for calling a manager a “nasty m*****f***er.”

Under its new standards, the Board is likely to uphold penalties for “abusive language” up to and including discharge.

Picket lines. The NLRB has long afforded protection to picket line banter, even when strikers used obscenities or made ad hominem personal attacks. Comments were only considered lawful grounds for discipline if they involved a threat of physical harm or included substantial racial or gender taunts.

General Motors permits employers to discipline strikers for picket line language that violates the employer’s enforced civility code, adding another risk to hitting the bricks.

PROSPECTS UNDER A BIDEN BOARD

Trump’s hold on the Labor Board will not last forever. Should Joe Biden win the presidency in November, he will be able to begin filling openings for members whose terms expire. But it may take until 2022 or later before Biden secures a majority on the five-member Board.

Over time, a new Board may revisit some or all of the Trump Board aberrations, including General Motors. It is hard to predict what may come out in the mix. In the meantime, union representatives and members will need to tread carefully.

QUESTIONS AND ANSWERS

Q. Does General Motors apply to public sector workplaces?

A. No. The NLRB only has jurisdiction over private sector employers. Eventually, however, state labor boards often adopt federal standards.

Q. The NLRB almost always defers ULP charges over the discipline of stewards to the grievance-arbitration process. Will arbitrators apply the General Motors standards?

A. Hard to say. Veteran arbitrators are likely to stick with the existing standards requiring employers to tolerate zealous advocacy. Less experienced arbitrators may follow the NLRB’s new approach.

Q. Is there anything unions can do to increase our chances of winning grievances and arbitrations over steward civility violations?

A. One of the best defenses to a civility charge is discriminatory enforcement. Unions should maintain diaries or other records tracking instances when managers or supervisors use profanity with employees or in conversations with union representatives.

Robert M. Schwartz is a retired union labor lawyer. He is the author of several books including The Legal Rights of Union Stewards and No Contract, No Peace! A Legal Guide to Contract Campaigns, Strikes, and Lockouts. His books can be purchased from the Labor Notes online store.

Further Reading from Robert Schwartz

Robert Schwartz has been a frequent contributor to the pages of Labor Notes over the years. Here are a few highlights. For more, check out his Work Rights Press book series at Labor Notes.

https://labornotes.org/2020/09/trump-labor-board-upends-special-status-union-stewards