NLRB Makes It Easier for Employers to Defend Discipline for Offensive or Abusive Conduct

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Arent Fox

In another pro-employer opinion, the National Labor Relations Board (the NLRB) changed the law and held that cases involving employees disciplined for engaging in offensive or abusive conduct, including making profane, racist, and sexually unacceptable remarks, in the course of an otherwise-protected activity will now be decided under the familiar Wright Line standard.
 

The Board has long used that standard with court approval in mixed-motive cases. Under Wright Line, the General Counsel must first prove that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove that it would have taken the same action even absent the protected activity, for example, by showing that it consistently disciplines other employees who engaged in similar abusive or offensive conduct. General Motors LLC, 369 NLRB No. 127 (July 21, 2020).

The Board has often been asked to determine whether employers have unlawfully discharged or otherwise disciplined employees who had engaged in abusive conduct in connection with activity protected by Section 7 of the National Labor Relations Act. For example, recent scenarios presented to the Board include employers discharging employees who had (1) unleashed a barrage of profane ad hominem attacks against an owner during a meeting in which the employee also raised concerted complaints about compensation; (2) posted on social media a profane ad hominem attack against a manager, where the posting also promoted voting for union representation; or (3) shouted racial slurs while picketing.

In deciding these cases, the Board has assumed that the abusive conduct and the Section 7 activity are analytically inseparable. In other words, the Board has presumed a causal connection between the Section 7 activity and the discipline at issue, rendering the Wright Line standard — typically used to determine whether discipline was an unlawful response to protected conduct or lawfully based on reasons unrelated to protected conduct — inapplicable.

Thus, the Board has not taken into account employer arguments that the challenged discipline was motivated solely by the abusive form or manner of the Section 7 activity or that the employer would have imposed the same discipline for the abusive conduct even without the Section 7 activity. Instead, the Board has presumed that discipline based on abusive conduct in the course of Section 7 activity violates Section 8(a)(3) and (1) (or, when no union activity is involved, just Section 8(a)(1)) unless the Board determines, under one of its setting-specific standards, that the abusive conduct lost the employee the Act’s protection.

For outbursts to management in the workplace, the Board has applied the four-factor Atlantic Steel test, under which the Board 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 has examined the totality of the circumstances.

And for picket-line conduct, the Board has applied the Clear Pine Mouldings standard, which asks whether, under all the circumstances, non-strikers reasonably would have been coerced or intimidated by the abusive conduct.

The Board’s fundamental rationale in applying its setting-specific standards has been that employees need a certain amount of leeway in exercising Section 7 rights for those rights to be meaningful. As the Board wrote in Consumer Power Co., 282 NLRB 130 (1986), “The Board has long held . . . that there are certain parameters within which employees may act when engaged in concerted activities. The protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”

In General Motors, the NLRB rejected that rationale:

These setting-specific standards aimed at deciding whether an employee has or has not lost the Act’s protection, however, have failed to yield predictable, equitable results. In some instances, violations found under these standards have conflicted alarmingly with employers’ obligations under federal, state, and local antidiscrimination laws. We believe that, by using these standards to penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace, the Board has strayed from its statutory mission. Accordingly, we hold that, going forward, these cases shall be analyzed under the Board’s familiar Wright Line standard. In our view, abusive conduct that occurs in the context of Section 7 activity is not analytically inseparable from the Section 7 activity itself. If the General Counsel alleges discipline was motivated by Section 7 activity and the employer contends it was motivated by abusive conduct, causation is at issue. As in any Wright Line case, the General Counsel must make an initial 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 Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. 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 Section 7 activity. We overrule all pertinent cases to the extent they are inconsistent with this holding.

Plus, the Board decided to apply its decision retroactively, to all pending cases in which the Board would have determined, under one of its setting-specific standards, whether abusive conduct in connection with Section 7 activity had lost an employee or employees the Act’s protection. The Board acknowledged that employees may have engaged in abusive conduct related to Section 7 activity in reliance on their belief that the Board’s setting-specific standards would protect them from discipline. Continuing to find violations of the Act, under the overruled standards, “where employers were simply exercising their right to maintain a civil, safe, nondiscriminatory workplace for their employees,” the Board concluded, “would be the greater injustice.”

“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and anti-discrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

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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