In another long-anticipated decision, on July 21, 2020, in General Motors LLC, 369 NLRB No. 127 (2020), the Board replaced three context-specific rules for determining whether certain abusive conduct committed by employees is protected under Section 7 of the National Labor Relations Act (the “Act”) with the Wright Line standard that is traditionally used to assess whether an employer’s conduct is discriminatory under the Act.
Applying the Wright Line standard, which evaluates whether an employee’s conduct would have been punished absent his/her Section 7 activity, to the facts of the case, the Board held that the employer did not violate the Act when it suspended an employee who engaged in “profane or racially offensive conduct towards management.”
According to the Board, the Wright Line standard is appropriate here because it “promises more reliable, less arbitrary, and more equitable treatment of abusive conduct.” In practice, we expect that this standard will provide more leeway for employers to discipline problematic employees who engage in offensive behavior without fear of the remedies of back pay and/or reinstatement under the Act.
Factual Background: Employee’s Profane and Offensive (and Insubordinate and Threatening) Conduct Resulted in Three Separate Disciplinary Actions
An employee (Charging Party), a member of a union committee in a union-represented workforce, was suspended on three separate occasions for engaging in the following conduct:
Previous Standard: Context-Specific Approach to Abusive Conduct by Employees
Prior to this decision, the Board has held that “an employer violates the Act by disciplining an employee based on abusive conduct ‘that is part of the res gestae’ of Section 7 activity, unless evidence shows that the abusive conduct was severe enough to lose the employee the Act’s protection.”
The Board determined whether abusive conduct was severe enough to lose the protection of the Act by applying one of the following tests, depending upon the context of the activity at issue:
The Board Ditches Context-Specific Tests In Favor of the Wright Line Standard in All Circumstances
In deciding to apply the Wright Line standard, the Board identified the following shortcomings with each of the three context-specific tests, while also noting as a general matter that setting context-specific standards is “in tension with anti-discrimination laws”:
The Wright Line standard is a burden-shifting framework, whereby first, the NLRB General Counsel must show by a preponderance of the evidence that the employee’s protected activity was a motivating factor in the employee’s decision to take the challenged action; if not, then the employer wins. If so, then the employer must show by a preponderance of the evidence that it would have taken the same adverse action regardless of the employee’s protected conduct. Such burden often can be met if the employer can show, for example, that it consistently disciplines employees for similar behavior.
The Board made clear in this decision that “[a]busive speech and conduct (e.g., profane ad hominem attack or racial slur) is not protected by the Act and is differentiable from speech or conduct that is protected by Section 7 (e.g., articulating a concerted grievance or patrolling a picket line).”
As is typical in precedent-shifting decisions, the Board further held that application of Wright Line will retroactively apply 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.”
Atlantic Steel created an exemption for outbursts that otherwise would have been unacceptable just because they were bound up in protected activity. As we have noted here, the application of the Atlantic Steel test has resulted in some strange results. Application of the Wright Line standard, rather than the context-specific analyses reasonably should make it easier for employers to understand the risk of disciplining employees for offensive and profane conduct in the workplace when such conduct is intertwined with protected activity. Wright Line is very similar if not identical to the same standard used to evaluate discrimination claims under Title VII. At the very least, it should provide more predictability for employers to potential liability under the Act, without undue weight placed on the context of the circumstances and what NLRA “test” must apply. Indeed, as the Board noted, the decision seeks to harmonize employers’ obligations under anti-discrimination laws and under the Act.