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Aug 11, 2020

Recently, the National Labor Relations Board (NLRB) released the decision General Motors LLC and Charles Robinson (GM), which is significant not only for its substance but for its timing. It held that abusive conduct and speech is not protected under NLRB Act Section 7, which basically guarantees employees the right to form or join a union, as well as participate in collective bargaining.

In a time of social tension amid protests against racism and sexism, the decision permits employers to require civility and peace in the workplace, while simultaneously protecting employees’ civil and labor rights.

Profanity, slurs, and threats in the workplace directed at management by union representative

In the case, Robinson, a union-committee person at an automotive assembly plant in Kansas City, Kan., engaged in abusive conduct on three separate occasions by: 

  1. Repeatedly yelling at a manager using profanity
  2. Mocking a manager in a meeting by speaking as a “caricature of a slave”
  3. Threatening a manager and playing loud music with profane, racially and sexually charged lyrics while the manager was in the room during a meeting. 

Robinson was suspended for increasing periods of time after each incident.

To determine whether the discipline constituted an unfair labor practice, the administrative law judge (ALJ) applied the four-factor analysis under the Atlantic Steel Co., test. This entailed considering: 

  1. The place of the discussion
  2. The subject matter of the discussion
  3. The nature of the employee’s outburst
  4. Whether the outburst was provoked by the employer’s unfair labor practice 

The ALJ determined that Robinson’s first instance of misconduct was protected activity, while the second and third instances of misconduct were too abusive to be protected. 

However, the Board would now review the ALJ’s  decision to address the appropriate standard for evaluating whether the discipline connected with protected activity violated the Act.

Past approaches evaluating abusive conduct lacked clarity and consistent results

Prior to the GM decision, existing precedent presumed that an employer’s discipline of an employee who engaged in abusive conduct in connection with Section 7 activity was motivated by an anti-union animus and unlawful — unless the employee’s conduct was so egregious that it lost its protected status. 

To determine whether the misconduct lost its protected status, the Board would apply one of three approaches depending on the setting in which the misconduct occurred:

  1. Workplace discussions with management. Previous Boards applied the four-factor analysis announced in Atlantic Steel Co to evaluate the abusive conduct. In GM, however, the Board recognized that the four-factor test was too “pliable,” yielding inconsistent results that failed to give the parties clear guidance on lawful disciplinary actions for abusive conduct.
  2. Social media posts. Abusive conduct or content posted on social media posts or occurring among co-workers was evaluated using a “totality of the circumstances” approach. The Board criticized the approach, which has been used in “few” cases, as an “amorphous test” that lacks specific considerations and results in inconsistent and unpredictable results.
  3. Conduct in the picket line. Finally, the third test, which was announced in Clear Pine Mouldings, applies to conduct exhibited during picketing. Under the Clear Pine Mouldings approach, abusive conduct lost its protected status when misconduct “reasonably tended to coerce or intimidate employees” in the exercise of their rights protected by Section 7.

In deciding cases under these approaches, past Boards have treated the abusive conduct as inseparable from Section 7 activity, granting employees “leeway for impulsive behavior when engaged in protected activity.” 

However, the GM Board recognized that the existing precedent rendered inconsistent and unpredictable results, in part because it applied three different tests depending on the setting in which the abusive conduct occurred. 

The presumption of a violation for discipline imposed in the course of Section 7 protected activity under the three approaches had also deprived employers of the ability to maintain order and respect in the workplace. Additionally, this approach had treated union and non-union employees disparately and created a conflict between compliance with labor and anti-discrimination laws.

Abusive conduct is severable from Section 7 protected activity

In GM, the Board concluded that abusive conduct is severable from protected activity. As a result, the Board held that the Wright Line standard would be applied in all three types of settings to determine whether an employer engaged in an unfair labor practice by disciplining an employee who acted abusively while engaging in Section 7 protected activity.

Under the Wright Line burden-shifting standard, the General Counsel must establish that the employer engaged in an unfair labor practice by showing that:

  • The employee engaged in Section 7 activity
  • The employer knew of the activity
  • The employer had animus against the activity

If the General Counsel satisfies the initial burden, the burden of persuasion shifts to the employer to establish that it would have disciplined the employee absent the Section 7 activity.

This ruling is a solid step in the right direction of balancing rights and ensuring civility in the workplace. By removing the initial presumption of a violation for discipline imposed during protected activity, the decision enables employers to adopt coherent policies, processes, and rules for reasonably disciplining abusive conduct.

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