On 21 July 2020, in a unanimous decision, the National Labor Relations Board (‘NLRB’ or the ‘Board’) modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements in the course of activity otherwise protected under the National Labor Relations Act (‘NLRA’ or the ‘Act’), that is, concerted action for mutual aid or to protect terms and conditions of employment by two or more employees (usually union activity) . See General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020). In reaching this decision, the Board announced that all such cases moving forward would be analysed under the Wright Line standard.
The Board previously held that discipline based on abusive conduct in the course of s7 activity violated the Act unless the Board determined that the abusive conduct lost the employee the protection of the Act.
For outbursts to management in the workplace, the Board has applied the four-factor Atlantic Steel test, under which it considers:
‘1. the place of the discussion;
2. the subject matter of the discussion;
3. the nature of the employee’s outburst; and
4. whether the outburst was, in any way, provoked by an employer’s unfair labor practice.’
For social media posts and most cases involving conversations among employees in the workplace, the Board examined the totality of the circumstances. And for picket-line conduct, the Board applied the Clear Pine Mouldings standard, which asks whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the abusive conduct.
Under the familiar Wright Line test, the General Counsel must make an initial showing that:
If the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the s7 activity.
In September 2019, the Board asked stakeholders for feedback on a series of Board decisions holding employers responsible for firing workers engaged in activity shielded by the NLRA. The Board invited comments, noting its concerns with several decisions, including Pier Sixty, which involved a profane Facebook post, and Cooper Tire, which involved racist picket-line comments. Dozens of interested parties filed briefs, including the Equal Employment Opportunity Commission (‘EEOC’).
The Board’s decision in General Motors LLC
The case involves a Black GM employee who was suspended three times for separate incidents in which he engaged in profane or racially offensive conduct towards management or at bargaining meetings. Charles Robinson works as a union committeeperson for GM in Kansas City, Kansas. Although employed by GM, he has worked full-time as a bargaining unit representative since 2012.
On 11 April 2017, Robinson had a heated exchange with a manager about overtime coverage for employees during which Robinson yelled profanities at the manager. GM suspended him for three days. On 25 April 2017, Robinson attended a meeting during which he became very loud and pointed his finger while speaking. When a manager told Robinson he was speaking too loudly, Robinson lowered his voice and mockingly acted a caricature of a slave, referring to the manager as ‘Master Anthony’. GM then suspended Robinson for two weeks. Finally, on 6 October 2017, Robinson attended a meeting and kept repeating the same questions. When a manager said they were going to move on, Robinson said he would ‘mess [the manager] up.’ Later in the meeting, Robinson began playing loud music from his phone that contained profane, racially charged, and sexually offensive lyrics. When the manager left the room, Robinson turned off the music, only to turn it back on when the manager returned. GM suspended Robinson for 30 days.
The General Counsel issued a complaint alleging that GM violated the Act by taking these three disciplinary actions against Robinson, as he was engaged in protected activity on behalf of the Union and its members at the time of the offensive conduct. On 18 September 2018, the Administrative Law Judge applied the four-factor Atlantic Steel standard to analyse whether Robinson’s abusive conduct while engaged in union activity lost him the Act’s protection. The judge concluded that Robinson’s conduct on 11 April 2017, retained the protection of the Act, but that his conduct lost him the protection of the Act during the course of the 25 April and 6 October 2017 meetings. Accordingly, the judge concluded that GM violated the Act only by suspending Robinson for his 11 April conduct.
In analysing the case, the Board noted the tension between current Board standards and anti-discrimination laws. The Board relied on the EEOC’s amicus brief, which pointed out how critical it is that employers are able to take corrective action as soon as they have notice of harassing conduct. The EEOC noted that if the employer fails to take corrective action, and the harassment continues and rises to the level of an actionable hostile work environment, then the employer may face liability under Title VII of the Civil Rights Act of 1964 and other similar anti-discrimination laws.
Ultimately the Board concluded that a different standard was needed for deciding these cases. The Board clarified that abusive conduct is not protected by the Act and should be differentiated from conduct that is protected by the Act. According to the Board, the application of the Wright Line test to these cases ‘promises more reliable, less arbitrary, and more equitable treatment of abusive conduct’ than the Board’s previously used standards, while ensuring that employees’ s7 rights continue to be protected.
Employers have long requested clarification in this area of law to allow businesses to discipline for misconduct. In a statement, NLRB Chairman John Ring stated that:
‘the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today.’
Eliminating the conflict between the NLRA and anti-discrimination laws is particularly important in light of the recent #metoo and Black Lives Matter movements as it has never been more important for employers to ensure workplaces are free from harassment.