NLRB Adopts Single Rule to Evaluate Employee Misconduct

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McNees Wallace & Nurick LLC

The National Labor Relations Board has traditionally applied separate tests to evaluate whether employee discipline violated the National Labor Relations Act, depending on the context of the underlying misconduct. This has resulted in heightened protection for employee misconduct that takes place during the course of protected activity, such as strikes.  However, in General Motors LLC, the Board abandoned the context specific analysis to apply one consistent standard.

Historically, the Board’s Wright Line standard is used to determine whether employee discipline was an unlawful response to employee protected activity.  In other cases, the Board presumed that discipline based on abusive conduct during Section 7 protected activity violates the Act, unless the Board determines that the abusive conduct lost the protection of the Act.  Two different standards have been used for evaluating these cases.

In evaluating employee misconduct that occurs in the workplace, the Board has applied the four-factor Atlantic Steel test, which 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.” In the case of social-media posts and most cases involving discussions among employees in the workplace, the Board has examined the totality of the circumstances to determine whether employee discipline was unlawful.

The Board has used yet another standard to evaluate employee misconduct during a strike.  In the context of a picket-line, the Board applies the Clear Pine Mouldings standard, which also considers all of the circumstances in determining whether non-striking employees reasonably would have been coerced or intimidated. If so, then the misconduct loses the protection of the Act.

In General Motors LLC, the Board held that these varied standards have failed to yield predictable, equitable results.  The Board cited to cases overturning employee discipline and requiring employers to reinstate employees accused of making threatening and racist comments toward coworkers and supervisors.  As a result, the Board concluded that the appropriate approach is to apply the Wright Line analysis in evaluating employee misconduct regardless of the context.

Under Wright Line, an employee must show that (1) the employee engaged in Section 7 protected activity, (2) the employer knew of that activity, and (3) there is a causal connection between the discipline and the Section 7 activity.  If this initial case has been made, the burden of shifts to the employer to prove it would have taken the same action even in the absence of the protected activity.

We believe that the Board’s decision will result in fewer disciplinary decisions being overturned by the Board and will result in more predictability for employers.  Hopefully, it will eliminate some of the more extreme cases of the misconduct in and outside of the workplace.  Certainly, the Board’s General Motors decision will be a welcomed relief for employers evaluating possible disciplinary action for employee misconduct.

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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