Pause Before You Discipline: NLRB Turns Against Civility in Lion Elastomers Decision, Part II

In this episode, the second of two, host Tom Godar and guest Rufino Gaytán discuss the impact of the National Labor Relations Board’s Lion Elastomers Decision, including its practical application to non-unionized employers and the steps to be taken both to reduce the likelihood employees would engage in such behavior or claim that they have been unfairly punished for protected behavior. We also explore the significant balance between the risk of a claim and the need for an employer to protect its culture and its values by disciplining employees who may be acting outside of the employer’s standards.The discussion highlights that having a consistent application of employer policies, providing discipline in the context of uncivil behavior even when not remotely connected to protected concerted activity may help establish a guideline for analysis of an alleged unfair labor practice. While the NLRB will not make its decision based on the subjective intent of the employer, the lack of consistency in application of a policy will surely facto into any conclusion that discipline in a potentially protected area is unlawful. When witnessing such behavior, Rufino makes it clear that it is very fact specific and that one activity of a profane objection on behalf of many in the workforce may be protected, but when it turns into threatening behavior, it may lose its protection altogether. Nevertheless, the employer may work to defuse such heated exchanges through suspension and later review, seeking the core basis for the outburst rather than discharging an employee in the heat of the moment.Most importantly, Rufino suggests that the employer must carefully adhere to its core values that would not allow certain behavior to go unchecked when balancing this against the risk that an NLRB review might find that same behavior to be protected and concerted activity. At that point, it may be wise to consult counsel on the latest reading of this changing area of law and how it affects employers’ desire to keep the workplace civil and safe.