Written by Jeremy Mittman and Hilary Feybush
Last week, the National Labor Relations Board (“Board”) issued a decision making it easier for employers to lawfully discipline or terminate employees who make abusive or offensive statements – including profane, racists, and sexually unacceptable remarks – in the course of activity that would otherwise fall under the protection of the National Labor Relations Act (“NLRA”).
In General Motors, the employee was suspended three times following three separate incidents in which he engaged in profane or racially offensive conduct towards management and at bargaining meetings in the course of union activity. Applying the four-factor Atlantic Steel standard, the ALJ found that the employer unlawfully suspended the employee for a profane outburst directed at his supervisor during an overtime coverage meeting. However, the employee’s implied threats, talking to his manager as if he was a slave master, and playing profane and racially charged music each time the manager entered the room was found to have forfeited statutory protection.
After issuing a Notice and Invitation to File Briefs in the matter, the Board in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020) adopted the Wright Line standard, which has previously been used by the Board in mixed-motive cases, for determining whether employees lose NLRA protection by using offensive or abusive conduct. Under Wright Line, the General Counsel must make a prima facie showing that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the protected activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the protected activity. If the prima facie case is established, the employer must prove it would have taken the same action even in the absence of the protected activity. For example, the employer can present evidence that it consistently disciplined other employees who engaged in similar abusive or offensive conduct.
The Wright Line standard, which the Board will apply retroactively to all pending cases, replaces the three prior context-specific standards used by the Board: one for encounters directed management (Atlantic Steel), another for social media posts and coworker discussions (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings). While these prior standards were based on the rationale that employees need to be allowed some leeway for impulsive behavior when engaging in protected activity, Chairman John F. Ring explained in a recent press release that they “often resulted in reinstatement of employees discharged for deeply offensive conduct” and conflicted with workplace norms and anti-discrimination laws.
According to the Board, applying the Wright Line standard “promises more reliable, less arbitrary, and more equitable treatment of abusive conduct than the Board’s experience under Atlantic Steel, the ‘totality of the circumstances’ standard, and Clear Pine Mouldings.”
A copy of the decision can be found here.