Long Awaited – Abusive Conduct Is Not Protected Activity

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On July 21, 2020, the NLRB released the decision General Motors LLC and Charles Robinson  (GM) which is significant not only for its substance but for its timing. The GM decision held that abusive conduct and speech is not protected §7 activity and applied the burden-shifting rule under the Wright Line standard to evaluate challenged disciplinary actions connected with §7 activity. In a time of social tension amid protests against racism and sexism, the decision permits employers to require civility and peace in the workplace while it simultaneously protects employees’ civil and labor rights.

Profanity, slurs, and threats in the workplace directed at management by union representative

In GM, Robinson, a union committee person at an automotive assembly plant in Kansas City, Kansas, engaged in abusive conduct on three separate occasions by: 1) repeatedly yelling at a manager using profanity, 2) mocking a manager in a meeting by speaking as a “caricature of a slave,” and 3) threatening a manager and playing loud music with profane,  racially and sexually charged lyrics while the manager was in the room during a meeting. Robinson was suspended for increasing periods of time after each incident.

To determine whether the discipline imposed by the employer constituted an unfair labor practice, the ALJ applied the four-factor analysis under the Atlantic Steel Co., test. The ALJ determined that Robinson’s first instance of misconduct was protected by §7 of the National Labor Relations Act (Act) while the second and third instances of misconduct were too abusive to be protected. In reviewing the ALJ’s  decision, the Board issued a Notice and Invitation to file Briefs to the parties and interested amici to address the issue of the appropriate standard for evaluating whether discipline connected with protected concerted activity violated the Act.

Past approaches evaluating abusive conduct lacked clarity and consistent results

Prior to the GM decision, existing precedent presumed that an employer’s discipline of an employee who engaged in abusive conduct in connection with §7 activity was motivated by an anti-union animus and unlawful, unless the employee’s conduct was so  egregious that it lost the protection of the Act. To  determine whether the misconduct lost its protected status, the Board applied one of three approaches depending on the setting in which the misconduct occurred: workplace discussions with management, social media posts, and behavior during picketing.

Workplace discussions with management. Previous Boards applied the four-factor analysis announced in Atlantic Steel Co to evaluate the abusive conduct. The Atlantic Steel approach requires consideration of 1) the place of the discussion, 2) the subject matter of the discussion, the nature of the employee’s outburst, and 4) whether the outburst was provoked by the employer’s unfair labor practice. In GM, however, the Board recognized that the four-factor test was too “pliable” yielding inconsistent results that failed to give the parties clear guidance on lawful disciplinary actions for abusive conduct.

Social media posts. Abusive conduct or content posted on social media posts or occurring among co-workers was evaluated using a “totality of the circumstances” approach. The Board criticized the approach, which has been used in “few” cases, as an “amorphous test” that lacks specific considerations and results in inconsistent and unpredictable results.

Conduct in the picket line. Finally, the third test, which was announced in Clear Pine Mouldings, applies to conduct exhibited during picketing. Under Clear Pine Mouldings approach, abusive conduct lost its protected status under §7 when misconduct “reasonably tended to coerce or intimidate employees” in the exercise of their rights protected by §7 the Act.

In deciding cases under these approaches, past Boards have treated the abusive conduct as inseparable from the 7 activity, granting employees “leeway for impulsive behavior when engaged in protected activity.” The GM Board recognized that the existing precedent rendered inconsistent and unpredictable results,  in part because it applied three different tests depending on the setting in which the abusive conduct occurred.  The presumption of a violation for discipline imposed in the course of §7 protected activity under the three approaches also deprived employers of the ability to maintain order and respect in the workplace. Finally, the Board acknowledged that the presumption of a violation for discipline of offensive behavior connected with §7 activity treated union and non-union employees disparately and created a conflict between compliance with labor and anti-discrimination laws.

Abusive conduct is severable from §7 protected activity

In GM, the Board revised the NLRB’s treatment of abusive conduct connected with §7 activity and concluded that abusive conduct is severable from the protected activity and not protected by the Act.  As a result, the Board held that the Wright Line standard would be applied in all three types of settings to determine whether an employer engaged in an unfair labor practice by disciplining an employee who acted abusively while engaging in §7 protected activity.

Under the Wright Line burden-shifting standard, the General Counsel retains the initial  burden of establishing that the employer engaged in an unfair labor practice by showing that:

  • The employee engaged in §7 activity;
  • The employer knew of the activity; and
  • The employer had animus against the activity, which must be established by presenting sufficient evidence of a causal relationship between the discipline and the §7 activity.

If the General Counsel satisfies the initial burden, the burden of persuasion shifts to the employer to establish that it would have disciplined the employee absent the §7 activity.

The GM decision overrules all cases inconsistent with the GM holding and is applied retroactively to all pending cases. It is also a solid step in the right direction of balancing rights and ensuring civility in the workplace. By removing the initial presumption of  a violation  for discipline imposed during protected activity, the decision enables employers to adopt coherent policies, processes and rules for reasonably disciplining abusive conduct. Employers must adhere to and consistently apply their policies and rules to avoid successful arguments of pretext during litigation of unfair labor practice violations related to misconduct connected with §7 activity.

Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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