Back in 1978, after Sylvester Stallone gained international fame through his portrayal of the boxer “Rocky,” he made a film called F.I.S.T. The film is often overlooked, but I always enjoyed it because it was a fictional account of a union organizing a fight akin to the Teamsters.
I have been practicing labor law for nearly a quarter century. In that time I like to think that I have learned ways to engage in civil conversation to help my clients get what they need at the negotiating table.
There is a scene in F.I.S.T. that always resonated with me. Stallone’s character has just been elected to lead his warehouse’s union and he has his first meeting scheduled with the antagonistic owner.
He shows up for the meeting and is escorted into the grand conference room and shown a seat on one side of the table. After being made to wait, the owner and his team come in and the owner takes his seat at the head of the table.
Stallone looks around, stands up and moves from his side seat to the other head of the table. The owner looks stunned as Stallone’s character tells him that when they are at the bargaining table they are equals and the owner doesn’t get the head.
It should surprise nobody that when it comes to negotiations, sometimes the discussions get heated. Language can get nasty or profane and voices can get raised. These types of emotional exchanges occur in the context of bargaining where the management team and the union team are supposed to be equals under the law. There is no subordination and therefore no “insubordination” when words are uttered or demands are made.
As the labor law has evolved, it has been understood that words that are said at the table or in the context of union/management relations can be extreme due to the nature of the discussions.
Foul language, loud language, and language that in other contexts might be considered insubordinate has always been allowed at the negotiating table. The line has usually been drawn at overtly threatening language. But until that line is reached, the rule has been to allow for unfettered discussion.
The National Labor Relations Board, the administrative agency charged with regulating conduct between employers and unions, has used a standard that permitted leeway for “impulsive behavior” when engaging in protected activity like bargaining, even if the conduct was “deeply offensive.”
Late last month though, the Board modified its standard. With the new ruling, employers will be able to discipline and even fire employees who use obscene or abusive language in the context of protected activity if the employers would discipline or fire an employee who engaged in the same kind of conduct outside of a protected activity.
Under the ruling, if an employer has a policy against using profane language in the workplace, then the employer can require that no profane language be used at the bargaining table. If there is a policy that loud or frightening behavior that could be perceived as threatening is prohibited generally in the workplace, then the same would be true at the bargaining table.
While the Board has argued that the new interpretation is necessary to protect employees from racist or sexual harassment, it seems as though the rule will have a perverse effect of chilling full and frank exchanges at the bargaining table. That will be bad for both management and employees.