On July 21, 2020, the National Labor Relations Board issued an important decision that gives employers broad protections to discipline or discharge employees who engage in abusive workplace conduct without running afoul of the National Labor Relations Act.
 
In a decision involving General Motors, LLC the NLRB modified the standards for determining whether employees lose the protection of the Act and can be disciplined or discharged after making abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the Act. In doing so, the Board has brought much needed clarity and predictability for both employers and employees to determine whether their actions comport with, or violate, the Act. The Board’s decision emphasizes that it is reasonable for employers to expect employees who engage in union organizing or other activity protected by the law to do so with a modicum of civility.
 
Background . Section 7 of the Act protects employees, whether in a union or nonunion setting, who engage in group related activities in support of collective bargaining or for their mutual aid or protection. During the Obama administration, the NLRB had broadly construed this protection and extended it to protect employees who had engaged in vulgar, crude, threatening, and or even harassing language or behavior at work, on social media or the picket line. For example:
 
  • An employer was found to have violated the Act for discharging an employee who, in a meeting, called the owner of the company, among other things, a “f***ing mother f***ing,” a “f***ing crook,” an “a**hole,” and threatened that the owner would regret firing him.
  • In another case, the Board found the employer violated the Act by discharging an employee who, in a social media post stated, among other things, that a certain manager “is such a NASTY MOTHER F***ER . . . . F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!”
  • In still another case, the employer was found to have violated the Act for discharging a white employee who, while picketing, shouted to black replacement workers: “Hey, did you bring enough KFC for everyone,” and “Hey, anybody smell that? I smell fried chicken and watermelon.”
 
While the Obama NLRB purported to have limits to what an employee could say or do while maintaining the protections of the Act, the Board’s decisions left employers with a patchwork of inconsistent and seemingly irreconcilable rulings that left employers at risk for merely enforcing their rules on workplace civility. 
 
The General Motors Ruling . In announcing the new test, the NLRB acknowledged that while it has long recognized that the Act takes into account the “realities of industrial life” which often engender “ill feelings and strong responses,” an employer nevertheless has the right to maintain order, respect, and a workplace free from invidious discrimination. In addition, the Board explained that holding an employer liable under the Act for “harassing” conduct often causes the employer to shirk its responsibilities under federal and state anti-discrimination statutes. Such laws often require the employer to take swift action against the offending employee. The NLRB's previous rulings left employers in a veritable “Catch-22” because EEO laws do not “forgive” harassing conduct just because it “arises from heated feelings about working conditions or because crude language is common in the workplace.” Finally, the NLRB offered that the way these standards were applied by the previous administration was out of step with most workplace norms and difficult to reconcile with antidiscrimination law.
 
The General Motors case addresses when and how an employee loses the Act’s protections and can be lawfully disciplined. The new standard announced in General Motors applies a single test—the 40 year-old Wright Line burden-shifting framework—to replace a variety of setting-specific standards. Thus, there will no longer be one test for encounters with management ( Atlantic Steel ), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line ( Clear Pine Mouldings ). While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, the NLRB said that they often resulted in reinstatement of employees discharged for deeply offensive conduct.
 
Under the Wright Line standard, the NLRB 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 it would have taken the same action, even in the absence of the protected activity; for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct. If the employer does so, then the NLRB must rule in favor of the employer unless it can be established that the employer initiated the discipline in retaliation or as a pretext for the employee's protected action.
 
 
Takeaway .  Employers no longer must endure abusive, harassing, or vulgar conduct under the guise of protected activity under the Act. Employers may now enforce rules of conduct and workplace behavior if, in doing so, they are applied consistently and without pretext for interfering with employees’ Section 7 rights.  “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said NLRB 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 antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
 
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or 704-765-1409, or visit us online at www.brgslaw.com .
 
Sincerely,
David Harvey
Richard S. Rosenberg
Matthew T. Wakefield
Ballard Rosenberg Golper & Savitt, LLP