Monday June 28, 2021

National Labor Relations Board Update

By Harry Johnson III and Morgan Lewis

This summary covers recent and selected NLRB developments relevant to employers, especially in the health care sector.

One of the biggest, if not the biggest, NLRB decisions of the year was General Motors, 369 NLRB No. 127 (July 21, 2020). The case concerned the standard for “abusive conduct” cases, where the employee commits such conduct (for example, harassment or offensive speech under EEO standards) as part and parcel of conduct otherwise protected by the National Labor Relations Act (e.g., a union organizing drive). Decades of NLRB precedent had established and applied various multifactor tests to abusive conduct, including a “totality of the circumstances” test for social media cases. Unfortunately, these tests had evolved (or devolved) to the point where outright racist or sexist speech punishable in other situations was rendered immune from discipline because it was part of concerted activity under the NLRA. In determining that a better, clearer standard was needed, the Board explained:

Absent evidence of discrimination against [NLRA] Section 7 activity, we fail to see the merit of finding violations of federal labor law against employers that act in good faith to maintain civil, inclusive, and healthy workplaces for their employees. These results simply do not advance the Board’s mission of promoting labor peace or any of the other principles animating the Act.

Under General Motors, the traditional Wright Line framework is now the sole, unified NLRA test that applies when analyzing whether discipline or discharge based on abusive, profane, and harassing employee actions and statements is lawful.1 Under Wright Line, the NLRB’s General Counsel must initially prove that 1) the employee engaged in protected concerted activity; 2) the employer had knowledge of that activity; and 3) there was a causal nexus or relationship between the protected activity and the employer’s discipline.

Then, the burden shifts to the employer to show that it would have taken the same action in the absence of protected activity. If the employer carries the burden, discipline is lawful. However, pretext will defeat the employer’s defense here, if proven. General Motors specified that, if the evidence as a whole “establishes that the reasons given for the [employer’s] action are pretextual — that is, either false or not in fact relied upon — the [employer] fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct, and thus there is no need to [evaluate whether the employer would have taken the same action in the absence of protected activity].”

There are a number of important employer “takeaways” from General Motors:

  • The General Motors decision is a welcome change for employers, recognizing both the ability and the obligation to maintain safe and respectful work environments. The Board now acknowledges that employers can have a legitimate nondiscriminatory interest in disciplining or discharging employees for abusive, profane, and/or discriminatory behavior, even if related to other NLRA-protected activity. 
  • The Board overruled all of its prior doctrine relating to the NLRA protection of abusive conduct. It is unclear whether any of this doctrine remains if an employer chooses to discipline for conduct tied into protected activity that is problematic but not “abusive.” However, the “disloyalty doctrine” — which applies specifically to attacks on an employer’s product or service during labor disputes and whether such attacks remain protected under the NLRA — still remains.
  • The Board did not provide a single definition of “abusive conduct” but rather provided examples of actions from past cases that it would consider abusive conduct. Generally, it appears that the Board considers “abusive conduct” as covering behavior that violates or risks violation of antidiscrimination and antiharassment laws, that constitutes personally directed (“ad hominem”) profane attacks, and that potentially even extends to modern definitions of “bullying.”
  • An employer should clearly characterize problem conduct in its disciplinary documents as abusive under the Board’s conception, if consistent with the facts, to help avail itself of the new standard.
  • General Motors also demonstrates that this Board takes seriously the General Counsel’s need to prove legally protected conduct as a motivating factor for the discipline, treating the protected concerted activity and the baseline abusive conduct as analytically distinct. Employers will have more of a chance to prove a causation defense, and the mere proximity in timing where abusive conduct and protected conduct occur during the same event — without more — will no longer be sufficient to support a claim of pretext in abusive conduct cases.
  • Although a familiar and traditional test, the Wright Line analysis can be expansive and difficult to confront when employer discipline is challenged. For example, employers should carefully review any potential comparator situations to ensure consistent enforcement of workplace standards and policies. Any evidence of discriminatory intent against unions or protected activity and evidence of pretext will also be a critical part of the analysis.
  • Finally, employers with currently pending proceedings involving abusive conduct should evaluate the potential application of General Motors to their cases.

There was another development on the enforcement side related to health care, coming from the General Counsel’s Division of Advice and discussing bargaining requirements related to policies created by COVID contingencies. In Mercy Health Partners, 07-CA-258220 (August 11, 2020), the Division of Advice determined that an employer could implement PPE policies without bargaining first, but requiring that it bargain later. Specifically, this Advice memorandum examines whether the employer hospital violated NLRA Section 8(a)(5) by unilaterally implementing new policies and benefits and whether the employer violated Section 8(a)(3) or (1) by adopting a policy that restricted the use of personal protective equipment (PPE) that was not employer-issued. The memorandum agreed that unfair labor practice charges should be dismissed because the employer had no duty to engage in pre-implementation bargaining and had satisfied its obligation to engage in post-implementation bargaining. Advice further agreed that the PPE policy, which was implemented across hundreds of health facilities and had been applied to union and non-union employees alike, was not discriminatory or retaliatory. The memorandum reiterated the “COVID-emergency-bargaining” standard — an important standard for employers — and why the hospital complied: 

In other COVID-related cases, we have concluded that an employer should be permitted to, at least initially, act unilaterally during the pandemic so long as its actions are reasonably related to the emergency situation. However, in addition, the employer must negotiate over the decision (to the extent there is a decisional bargaining obligation) and its effects within a reasonable time thereafter.• Here, the initial implementation of the policies and benefits (covering PPE, visitor restrictions, COVID-related paid leave and time away from work, delegation of ICU nurse duties to others, travel reimbursement policy to implement social distancing, event reporting processing for COVID-related events, and assignments/safety protocols for immunocompromised or pregnant staff) was permissible without first notifying the Union either because the changes were legally mandated (e.g., the visitor restrictions per state executive order) or reasonably related to the COVID-19 emergency. As to the Employer’s post-implementation bargaining obligation, it has negotiated or communicated its position on each item as to which the Union has requested bargaining. Furthermore, the Region notes that the parties continued to meet on at least a weekly basis to negotiate pandemic-related effects on employees.

Mercy Health Partners is a useful and important reminder of how to make COVID-necessitated changes in hospital policies the lawful and correct way.

Note: For the latest data on labor across the nation, access the ASHHRA/IRI Semi-Annual Labor Activity in Health Care Report at

Once a member of the National Labor Relations Board (NLRB), Harry I. Johnson, III now serves clients as a management-side defense lawyer, with more than 20 years of experience in traditional labor matters before the NLRB and federal courts. Harry practices across the entire traditional union/ labor field, including in NLRB unfair labor practice and representation proceedings, union representation campaigns, union corporate campaigns, labor arbitrations, collective bargaining, labor-management relations, labor-related advice for mergers and acquisitions, and federal and state labor injunction cases.

Originally published in the Winter 2020 issue of HR Pulse magazine.

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