The NLRB recently granted employers more authority to discipline or discharge employees engaged in abusive behavior, even when the conduct occurred during otherwise protected concerted activity.
This ruling both overturns prior Board precedent and could have a significant impact on future disputes between employers and employees.
The General Motors rulings, 14–CA–197985 and 14–CA–208242, focused on the conduct of Charles Robinson, an employee and union steward who was disciplined and later fired following several troubling interactions with management over workplace issues. This included yelling and using profane language in an exchange with management representatives over employee training, using racially charged language and conduct in a work meeting with other management representatives, and a threat to “mess up” a management representative in a separate workplace encounter. Following the last instance, Robinson blared music from his phone which contained profane, racially charged, and sexually explicit lyrics when the manager involved in that dispute entered the room with Robinson.
Previous NLRB Standards:
Under prior precedent, the NLRB often prevented employers from effectively disciplining an employee based upon abusive conduct that constituted a part of otherwise protected activity, suggesting that “employees are permitted some leeway for impulsive behavior when engaged in concerted activity”. Employers were only allowed to impose corrective action only when “the abusive conduct was severe enough to lose the employee the Act’s protection”. In that way, the NLRB attempted to balance the employee’s right to engage in concerted action with the employer’s “right to maintain order and respect”.
This broad approach resulted in widely differing standards and outcomes, depending on setting. For example, under the Clear Pine Mouldings decision, 268 NLRB 1044 (1984), employers could only punish picket line misconduct under circumstances where the actions “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” As the General Motors ruling noted, this lenient view resulted in providing legal protection to “appallingly abusive picket-line misconduct…including racially and sexually offensive language”.
In contrast, workplace disputes between employees and management were regularly adjudicated using the Atlantic Steel standard, 245 NLRB 814 (1979). In doing so, the Board considered “(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” when determining whether an employer’s action violated the Act. There, the General Motors ruling notes, the standard “failed to produce reliably consistent results that provide clear guidance for when an employer will violate federal labor law by disciplining an employee who has engaged in abusive conduct in the course of otherwise-protected activity.”
Social media posts and workplace discussions among coworkers were considered through yet a third approach, articulated in the Pier Sixty decision, 362 NLRB 505 (2015). There, the Board considered the “totality of the circumstances” regarding the conduct, without articulating any specific factors or measures. This method of review, according to the General Motors ruling, led to “the same, if not more, inconsistency and unpredictability”.
Inconsistent Burdens Placed on Employers:
In practice, the NLRB noted in General Motors that its conclusions were often at odds with the employer’s obligations under EEOC regulations, as well as other federal equal opportunity and anti-discrimination laws and rules. The NLRB noted an “inherent conflict between employers’ duties under the Act” to tolerate certain disruptive acts and language in the context of protected concerted activity and the employer’s “duties under anti-discrimination laws, which require prompt and appropriate corrective action” by the employer.
Back to Wright Line:
The General Motors rulings sought to remove that ambiguity. On both a prospective and retroactive basis, the NLRB announced its plan to utilize the Wright Line standard, 251 NLRB 1083 (1980), to determine whether corrective action can lawfully be taken against employees engaged in abusive behavior in the course of concerted activity. Under Wright Line, an initial case must be established that “(1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity.” Once that burden is met, “the employer will be found to have violated the Act unless it meets its defense burden to prove that it would have taken the same action even in the absence of the Section 7 activity.” Evidence of pretext is sufficient to defeat the employer’s claims.
Takeaways for Employers:
As a result, employers will have much more authority to take corrective action to address abusive or disruptive employee behavior, even if those actions can plausibly be construed as concerted activity. As long as employers apply employee conduct standards in a consistent and neutral manner, as the NLRB noted in General Motors, “[t]he Board will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.”