Offensive Employee Outbursts Are Not Protected Activity Under the NLRA

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A recent decision by the National Labor Relations Board (NLRB or Board) has modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements during the course of otherwise protected activity under the National Labor Relations Act (NLRA or the Act), making it easier for employers to discipline workers for engaging in offensive, racist or sexist speech or conduct.

Previously, the NLRB had held that certain unprofessional or disrespectful workplace outbursts were protected by Section 7 of the Act, which safeguards employees’ right to complain about the terms and conditions of employment. In General Motors, LLC (GM), 369 NLRB No. 127 (2020), the NLRB overturned 40 years of Board precedent and several Obama-era Board decisions that had protected employees who engaged in inappropriate, even profane or racist, attacks, so long as those attacks occurred simultaneously with conduct otherwise protected by the Act.

In General Motors, Charles Robinson worked as a union committeeperson at the General Motors automotive assembly facility in Kansas City, KS. In 2017, General Motors suspended Robinson three times following three separate incidents in which he engaged in profane or racially offensive conduct toward management or at bargaining meetings in the course of union activity. On April 11, 2017, Robinson had a heated exchange with a manager about overtime coverage for employees away on cross-training, yelling that he did not “give a f*** about your cross-training,” that “we’re not going to do any f***in’ cross-training if you’re going to be acting that way,” and that his manager could “shove it up [his] f***in’ ass.” In response, General Motors suspended him for three days.

On April 25, 2017, while at a meeting with management and co-workers, Robinson was told he was speaking too loudly. Robinson lowered his voice and mockingly invoked a caricature of a slave. Referring to management, Robinson said, “Yes, Master, Your Master Anthony,” “Yes, sir, Master Anthony,” “Is that what you want me to do, Master Anthony?” and also stated that management wanted him “to be a good Black man.” In response, General Motors suspended him for two weeks.

On Oct. 6, 2017, Robinson attended a work-related meeting and played loud music from his phone that contained profane, racially charged and sexually offensive lyrics. The music went on for ten to 30 minutes. When management left the room once or twice, Robinson turned off the music, only to turn it back on when management returned. General Motors suspended him for 30 days.

After an Administrative Law Judge issued a decision concluding that Robinson’s April 11, 2017 conduct constituted protected activity, the NLRB issued a Notice and Invitation to File Briefs asking the parties and interested amici to address a number of questions, including “[u]nder what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?”

Prior to General Motors, the NLRB utilized a number of different standards in evaluating whether employees were lawfully disciplined after making offensive and/or abusive statements in conjunction with protected activities. For example, the NLRB had utilized different standards depending on whether the statements were made to management, on social media or “on the picket line.”

In General Motors, the NLRB replaced these standards with one uniform standard for disciplinary cases involving such conduct — the Wright Line standard, articulated in National Labor Relations Board, Petitioner v. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), which has long been used by the Board with court approval in mixed-motive cases. Under the Wright Line standard, the employee must first prove 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. Once the employee meets that initial burden, the burden then shifts to the employer, which may escape liability if it can prove that it would have taken the same action even in the absence of the protected activity alleged. For example, employers can offer evidence of consistent discipline of other employees who engaged in similar offensive conduct as proof to meet their burden. If an employer credibly presents such proof, then its discipline of a worker for making protected activity-related abusive statements will not be found to violate the Act.

The Board’s decision recited a litany of profanity-laden, racist, and sexually harassing speech that under the previous standards resulted in reinstatement of employees discharged for highly offensive and troubling conduct and in announcing the revised standard explained that “[a]busive conduct is not protected by the Act and should be differentiated from conduct that is protected by the Act.”

Notably, the NLRB announced that it would give retroactive effect to this new standard in all pending cases, applying it to all protected-activity settings involving abusive speech.

What This Means for Employers

General Motors acknowledges that employers can have a legitimate nondiscriminatory interest in disciplining or discharging employees for abusive, profane and/or discriminatory behavior, even if related to Section 7 protected activity. Moreover, the decision synchronizes the Act with anti-harassment and anti-discrimination laws with which employers must comply, making it easier for employers to establish a harassment-free and positive work environment.

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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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