- A recent National Labor Relations Board (NLRB) decision adopts the traditional Wright Line standard to replace various standards previously employed in different settings when evaluating disciplinary decisions in situations where employees engage in protected concerted activity accompanied by abusive, insubordinate, profane, racist or other uncivil behavior.
- In so doing, the NLRB's decision restores an employer's ability to enforce standards of civil conduct in the workplace, including those prohibiting insubordination, profanity and discriminatory or harassing behavior.
- Employers should carefully examine and document the reason for terminations based upon uncivil employee conduct accompanying protected activity.
In General Motors LLC, the National Labor Relations Board (NLRB) departed from recent cases condoning abusive employee behavior when accompanied by protected activity. (See previous Holland & Knight alert, "Recent NLRB Decisions Condone Workplace Profanity and Insubordination," Sept. 15, 2014.) The NLRB found that an employee was appropriately suspended because of his profane and racially offensive behavior and not for engaging in protected activity regarding the terms and conditions of his employment. In so doing, the Board abandoned several former situation-specific standards used to determine if a disciplinary action was wrongful or caused by an employee's offensive behavior in favor of its traditional Wright Line standard for evaluating disciplinary action in which there is both protected and unprotected activity.
In General Motors, employee Charles Robinson worked at its automotive assembly facility in Kansas City, Kansas. General Motors suspended Mr. Robinson three times in 2017 based on three separate incidents where he engaged in profane or racially insensitive conduct to management or at bargaining meetings.
- Mr. Robinson told a manager when discussing that employees would need to work overtime during cross-training, that he did not "give a f*** about your cross-training," that "we're not going to do any f***ing cross-training if you're going to be acting that way," and that the manager could "shove it up [his] f**in' a**."
- At a committee meeting discussing subcontracting work with union members and General Motors managers, Mr. Robinson was told that he was speaking too loudly. In response, Mr. Robinson lowered his voice and mockingly told the manager, "Yes, Master, Your Master Anthony," "Is that what you want me to do, Master Anthony?" and stated that the manager wanted him "to be a good Black man."
- At a manpower meeting with union representatives and General Motors management, Mr. Robinson asked the same question a number of times. When the manager said that it was time to move on, Mr. Robinson told the manager that he would "mess [him] up." The manager asked if that was a threat, to which Mr. Robinson replied that the manager could take it how he wanted to. Mr. Robinson began playing loud music on this phone containing profane, racially charged, and sexually offensive lyrics. When that manager left the room, Mr. Robinson would stop the music only to restart it when the manager returned to the meeting.
After each of these incidents, General Motors suspended Mr. Robinson for a number of days.
The Administrative Law Judge (ALJ) who reviewed Mr. Robinson's suspensions applied the prior flexible Atlantic Steel standard and found that Mr. Robinson's conduct in the first incident was protected despite his profane language, while his conduct in the second and third incidents lost the protection of the National Labor Relations Act. Therefore, the ALJ found that General Motors violated the Act by suspending Mr. Robinson based on the first incident.
Prior Standards Revisited
On appeal, the NLRB reviewed its practice of applying different standards based on the setting of the employee conduct at issue in order to determine when offensive conduct crossed the line to lose protection of the Act. For face-to-face workplace interactions with management, the Board had applied the Atlantic Steel four-factor standard which considered: 1) the place of 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 interactions between coworkers, the Board applied a "totality of the circumstances" approach considering the wide range of facts involved.1 For behavior occurring on a picket line, the Board used the Clear Pine Moulding test, which effectively only allowed an employee to be disciplined if the conduct involved an overt or implied threat or where there was a reasonable likelihood of an imminent physical confrontation. In reviewing the decisions based on these standards, the Board voiced concern that application of these standards had allowed appalling and abusive behavior, often containing racially or sexually offensive language, to go unpunished.
The Board found the several standards difficult for employers to apply in practice, often forcing employers to err on the side of tolerating offensive behavior. Prior Board decisions reasoned that tolerating abusive, insubordinate, racially or sexually charged language when employees discussed the terms and conditions of their employment would not create a hostile work environment, which requires severe and pervasive harassment. However, here the Board followed U.S. Equal Employment Opportunity Commission's (EEOC) guidance that it is critical for employers to take corrective action as soon as they have notice of harassing conduct, even if it does not rise to the level of a hostile work environment. Therefore, the Board reasoned that to prevent the harm of discriminatory or harassing conduct, the employer must be allowed to take action, even if the conduct arises from heated feelings based on working conditions.
The Wright Line Standard
In light of the Board's concern for inconsistent results based on the several separate standards previously employed depending on the conduct's setting and the further concern that the prior standards forced employers to tolerate abusive, insubordinate, discriminatory or harassing behavior, the Board decided that its well-known Wright Line standard should apply regardless of the setting. The Wright Line standard hinges on causation between the protected activity and the employer's disciplinary action. Under Wright Line, the employee must make an initial showing that:
- the employee engaged in protected activity
- the employer knew of that activity
- the employer had animus against the protected activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the protected activity
Once the employee establishes these initial facts, the employer must prove that it would have taken the same action despite the employee's protected activity. If the employer makes such a showing, then the employee can provide evidence that the reasons provided by the employer are merely pretextual.
Effect of Wright Line Applying in All Circumstances
The Board's decision to have Wright Line apply in all circumstances creates clarity for employers. An employer is now able to make disciplinary decisions based on abusive conduct, so long as the employer's decision is not made with animus against the employee's protected activity. In light of this, employers should clearly establish and document the reasons for discipline before they take action in a situation where an employee is exercising protected rights while also engaging in abusive behavior.
Recent Board decisions prevented employers from enforcing policies against insubordination and the use of profanity in the workplace because of the potential chilling effect on protected activity. The Board's decision in General Motors revisited decisions that saw abusive and offensive conduct as indivisible from the protected activity accompanying it. The Board's decision in General Motors acknowledges that an employee's abusive or profane behavior can be viewed separately from their protected activity, even when it occurs simultaneously. It also permits employers to enforce civil standards of behavior, including those that prohibit profanity and insubordination as long as such action is not used as a pretext for punishing legitimate concerted activity. The NLRB's decision in General Motors is a step toward a more respectful workplace for all.
1 The Board voiced its disapproval of the lack of guidance this standard provided and pointed out that the Second Circuit applying this standard held that an employer wrongfully terminated an employee based on a Facebook post stating: "[Manager] is such a NASTY MOTHER F***** don't know how to talk to people‼‼‼! F*** his mother and his entire f****** family‼‼ What a LOSER‼‼ Vote YES for UNION‼‼‼"