The NLRB Strikes Back Against Abusive Behavior in the Workplace
By Kevin Cleveland
In a big win for union employers, the NLRB declared last week that moving forward courts must use the Wright Line standard to analyze abusive conduct in the workplace (General Motors LLC and Charles Robinson (369 NLRB no. 127 (2020)). The change was necessary because the setting specific standards which the NLRB was using were producing unpredictable results, which in some instances “conflicted alarmingly with employers’ obligations under federal, state, and local anti-discrimination lawsuits.”
For example, recent cases before the Board included where employers fired employees who (1) unleashed a barrage of profane personal attacks against the business owner during a meeting in which the employee also raised concerted complaints about compensation, (2) posted on social media a profane personal attack against a manager, where the posting also promoted voting for union representation, or (3) shouted racial slurs while picketing. In such cases, it was presumed that employer discipline was protected under the National Labor Relations Act unless the Board determined under one of its setting-specific standards, that the abusive conduct lost the employee the protection of the Act.
For outbursts to management in the workplace, the Board applied the Atlantic Steel test, considering “(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 conversations among employees in the workplace, the Board usually reviews “the totality of the circumstances.” And for picket-line conduct, the Board applies the Clear Pine Mouldings standard, which asks whether, “under all of the circumstances, nonstrikers reasonably would have been coerced or intimidated by the abusive conduct.” Thus, under the old system, the Board presumed that the discipline and the Section 7 activity [under the NLRA] “are analytically inseparable.”
The Wright Line test, however, requires that the NLRB General Counsel must show that” (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had an 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.” In other words, just because an employee engages in protected activity, they can still be terminated for unprotected behavior as long as the protected activity has nothing to do with the reason for termination.
This decision paves the way to, once again, allow Employers to apply facially neutral work rules prohibiting profane, racist, or sexist conduct unless the evidence shows that the employer used such conduct as a pretext to interfere with Section 7 activity.
If you have any questions or need help with union-related issues, reach out to the experts at Young, Cohen & Durrett.