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30 July 20206 minute read

NLRB overturns restrictions on employee discipline for profane or abusive outbursts

For years, employers in unionized workplaces have faced a dilemma when confronted with an employee engaging in a profane, abusive outburst in the workplace, whether that outburst was directed at management, aimed at other employees crossing a picket line or expressed among fellow employees on social media.  If that employee was arguably engaged in activity protected under the National Labor Relations Act (NLRA), such as picketing or discussing workplace terms and conditions with management, disciplining the employee for the profane and offensive conduct may be considered unlawful under the NLRA. As we have written about before, the National Labor Relations Board (NLRB) long maintained a set of legal standards under which an employer risked unfair labor practice liability under the NLRA for issuing workplace discipline for even extreme profane and abusive employee conduct, if such conduct occurs in the context of NLRA-protected activity.  The NLRB’s standards were based on the view that labor relations issues are by their very nature contentious and heated, and that employees should be granted leeway in the manner in which they raise their concerns.

In a welcome development for employers, the NLRB recently reversed those standards, in the process loosening the restrictions on employers’ ability to issue discipline for these profane, abusive outbursts.  General Motors LLC, 369 N.L.R.B. No. 127 (Jul. 21, 2020).  Going forward, discipline issued for this type of conduct will only be unlawful if the employer intends the discipline to punish activity protected under the NLRA.  The NLRB’s new test will provide employers with greater clarity concerning their ability to discipline clearly out-of-bounds behavior in the workplace, and will serve to lessen the tensions between conduct protected under the NLRA and employers’ obligations under workplace anti-discrimination laws.

The old law: setting-specific standards applicable to abusive employee conduct

Prior to General Motors, the NLRB applied different standards for determining whether profane and abusive employee conduct was protected under the NLRA depending on where and under what circumstances the conduct occurred.  For employee outbursts to management in the workplace, the Board used a four-factor balancing test, determining whether an outburst was so egregious to lose protection of the NLRA.  Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979).  The test balanced the place and subject matter of discussion, the nature of the outburst, and whether the outburst was provoked by the employer’s unfair labor practices.  For social media posts and most cases involving conversations among employees in the workplace, the Board used a test based on the totality of the circumstances.  Pier Sixty, LLC, 362 N.L.R.B. 505, 506 (2015).  For picket-line conduct, the Board would determine whether, under all the circumstances, nonstrikers reasonably would have been coerced or intimidated by the abusive conduct.  Clear Pine Mouldings, 268 N.L.R.B. 1044, 1046 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985). 

General Motors: greater clarity and freedom to act for employers

On July 21, 2020, the NLRB issued its decision in General Motors, overturning the differing, setting-specific treatment afforded to discipline based on profane and abusive conduct occurring in the course of protected activity.  General Motors involved a union-represented employee that had a heated exchange with a manager about employee overtime coverage in which the employee used profane and abusive language towards the manager.  The employee was suspended based on his conduct. An NLRB Administrative Law Judge applied the Atlantic Steel standard and concluded that the employee’s conduct was protected, notwithstanding his profanity-laced outburst. Accordingly, the judge concluded that the employer violated the NLRA by suspending the employee.

The NLRB reversed the judge and overturned the setting-specific analytical standards discussed above.  The NLRB reasoned that the setting-specific standards used were flawed in that they were tilted in favor of protecting the abusive speech, had been applied inconsistently, and did not give proper consideration to the employers’ right to maintain order and respect in the workplace.  The NLRB noted specifically that the now-rejected standard permitted egregiously abusive picket-line misconduct to retain protection, including severe incidents of racially and sexually offensive language.  Further the Board found that the standards that the NLRB had been using were incompatible with employers’ duties under workplace antidiscrimination laws, to the extent that they would penalize an employer’s actions to curb abusive workplace conduct.

Based on this, the Board overturned the prior regime of setting-specific standards in favor of extending the Wright Line standard traditionally used to determine liability for interference with protected concerted activity.  The Board chose to apply the Wright Line standard, reasoning that abusive speech and conduct (eg, profane ad hominem attacks or racial slurs) are not protected by the NLRA and are differentiable from speech or conduct that is protected by the NLRA (eg, articulating a concerted grievance or patrolling a picket line). The Board further reasoned that abusive conduct is not an inherent part of protected activity.  Under Wright Line, to prove an unfair labor practice, the NRLB must initially show that (1) the employee engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had animus against the protected activity.  Once that initial case is proven, the employer will be found to have violated the NLRA unless it meets its burden to prove that it would have taken the same action even in the absence of the protected activity.

The Board held that, consistent with its normal practice, the decision in General Motors applies retroactively to all pending cases. 

Takeaways for employers

The General Motors decision is another in a recent line of decisions by the Trump-era NLRB providing employers with a greater measure of certainty and clarity when imposing employee discipline. 

The latitude to issue standard discipline for profane and abusive workplace conduct without fear of an unfair labor practice charge will better allow employers to maintain a respectful and orderly workplace atmosphere. Further, the ability to address the use of racist and sexist language by employees is particularly critical with regards to compliance with anti-discrimination laws, a subject that has taken on ever-increasing importance in the current era. The new standard does not give absolute freedom to employers employers still must take care and train managers to avoid the impression that discipline is a result of anti-union animus, which remains unlawful. 

The General Motors decision is another reflection of a labor law landscape undergoing dramatic change, which makes guidance from knowledgeable and experienced labor counsel especially critical.  We encourage you to review our articles discussing the NLRB’s revised election procedures and revised joint employer standard.  If you have questions on these issues, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney.

This information does not, and is not intended to, constitute legal advice.  All information, content, and materials are for general informational purposes only.  No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.