Noting the employer did not have an employee code of conduct policy prohibiting the use of derogatory language, the National Labor Relations Board (NLRB) held an automotive dealership violated the National Labor Relations Act by wrongfully terminating a union employee for calling the owner a derogatory term during negotiations. Cadillac of Naperville, Inc., 371 NLRB No. 140 (Sept. 22, 2022).

The Board explained that the employer failed to demonstrate it would have terminated the employee absent the alleged protected activity and that such derogatory language was common in the employer’s workplace.

In Cadillac, unionized employees commenced a strike after negotiations for a successor collective bargaining agreement stalled. The employee in question, a member of the union’s negotiating team, got into a verbal altercation with the employer’s owner and yelled a derogatory term at the owner. The employer terminated the employee for insubordination.

To decide whether an employee was disciplined for engaging in protected activity, the NLRB applied its mixed motive Wright Line test. The Board first found the general counsel (the Board’s prosecutorial authority) established a prima facie case of retaliation under Wright Line. It held the employee engaged in protected activity, the employer knew of the activity, and the activity was a motivating factor in the disciplinary action.

The NLRB then determined the employer failed to satisfy its burden of demonstrating it would have terminated the employee regardless of the employee’s protected concerted activity. The NLRB concluded the employee’s behavior was “the utterance of a single derogatory term in response to a profane threat of physical force from the owner…” and use of such language by both parties was common. Additionally, the employer did not produce evidence of any policy prohibiting such conduct to rebut the inference of an improper motive. As a result, the Board found the employer violated the Act.

The Board’s recent decisions applying the mixed motive Wright Line standard remind employers that they should promulgate, maintain, and consistently enforce clear and narrowly tailored work rules and policies. Doing so will help an employer establish it would have taken the same action against an employee regardless of purported protected concerted or union activity should discipline later be challenged.

The current NLRB’s recent decisions underscore its willingness to expand the scope of protected employee conduct, while requiring employers to demonstrate more rigorous proof of available defenses. Employers may contact their Jackson Lewis attorney should they have questions.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Richard I. Greenberg Richard I. Greenberg

Richard Greenberg, a Principal in New York City office of Jackson Lewis P.C., is admitted to the bar of the State of New York and the Federal District Court for the Southern District of New York. Mr. Greenberg graduated from Cornell University’s…

Richard Greenberg, a Principal in New York City office of Jackson Lewis P.C., is admitted to the bar of the State of New York and the Federal District Court for the Southern District of New York. Mr. Greenberg graduated from Cornell University’s School of Industrial and Labor Relations in 1992 and earned a Juris Doctor degree from Brooklyn Law School in 1995.

He advises both unionized and union-free clients on a full-range of labor and employee relations matters. With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free. With respect to employee relations matters, Mr. Greenberg has extensive experience assisting clients in numerous industries with the development and maintenance of personnel policies and personnel infrastructures. In this regard, Mr. Greenberg often works on these issues with clients as business needs and culture change as a result of business transactions, such as mergers and acquisitions.

Mr. Greenberg regularly advises clients on compliance with the myriad of federal and state employment laws, including the FMLA, FLSA, ADA, ADEA and WARN, as well as new legal developments impacting labor and employment policies and practices.

Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. and co-leader of the firm’s Labor Relations practice group.

Photo of Richard F. Vitarelli Richard F. Vitarelli

Richard F. Vitarelli is a principal in the Hartford, Connecticut, office of Jackson Lewis P.C. He is the co-leader of the Labor Relations practice group, the firm’s national labor practice.