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National Labor Relations Board Walks Back Protections For Abusive Employee Conduct

This past June, SHPC published an article describing a pending National Labor Relations Board (“NLRB” or “Board”) case, General Motors, Cases Nos. 14–CA–197985 and 14–CA–208242, in which the Board was poised to decide when employers have the right to discipline employees who commit abusive misconduct while engaging in protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”).

On Tuesday, July 21, the Board issued its decision (General Motors, 369 NLRB No. 127 (July 21, 2020)), completely overhauling its approach to cases involving abusive employee outbursts. Under the new approach, the Board will simply determine whether the employer’s disciplinary decision was lawfully motivated by the employee’s abusive conduct, or unlawfully motivated by the employee’s protected concerted activity.

As with the Board’s recent relaxation of its previously-strict scrutiny of workplace rules prohibiting disrespectful or insubordinate employee conduct, the General Motors framework gives employers more flexibility to enforce rules prohibiting intimidation, harassment, discrimination, and other abusive conduct when employees violate those standards in the course of protesting terms and conditions of employment.

The Board’s Past Approach to Abusive Section 7 Conduct

The NLRA prohibits all employers, union or non-union, from interfering with employees’ right to act collectively for the purpose of bettering their working conditions (aka protected “concerted activity”). Significantly, even actions taken by a single employee may be deemed protected concerted activity, if the employee undertakes them with the object of initiating or preparing for group action.

Prior to its General Motors decision, the Board held that employees must be permitted a certain amount of “leeway” to make inflammatory or offensive remarks while engaging in protected protests of their terms and conditions of employment.

The Board applied three different setting-specific tests to assess whether an employee had exceeded the reasonable bounds of this “leeway.” If the outburst took place at work, the Board examined four factors: (1) the location of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practices. If the conduct took place online (e.g. Facebook posts), the Board applied a more relaxed test that examined the overall facts and circumstances. Pier Sixty, LLC, 362 NLRB 505 (2015). If the conduct took place on the picket line, the Board evaluated whether the employee’s conduct would intimidate a reasonable person in his/her exercise of Section 7 rights. Clear Pine Mouldings, 268 NLRB 1044 (1984).

In many cases, however, granting such “leeway” effectively protected employees who had engaged in highly offensive, derogatory, or even discriminatory behavior. The Board’s lenient approach to this sort of offensive employee conduct often put employers in the untenable position of choosing between imposing discipline for harassing and/or discriminatory employee conduct and thereby potentially violating the NLRA, or tolerating such behavior and thereby placing themselves at risk of liability for failing to prevent and remedy unlawful harassment or discrimination.

The Administrative Law Judge’s Decision in General Motors, and the Board’s Notice and Invitation to File Briefs

In General Motors, the ALJ had held that an employee/union committeeperson’s statements to his supervisor during an employee meeting that the employee did not “give a f*ck” about the supervisor’s plans for employee training, and that the supervisor could “shove it up [his] f*cking ass,” were protected under the NLRA. The ALJ found, however, that the employee lost the protection of the Act when he directed racially charged language at the same supervisor, and played loud music with profane and racially charged lyrics each time the supervisor entered or exited a room. Both the employer and the NLRB General Counsel asked the Board to reevaluate the ALJ’s conclusions regarding the protected nature of the employee’s profane and racially tinged remarks.

Concerned that its jurisprudence on this issue was “morally unacceptable and inconsistent with other workplace laws,” in September 2019 the Board invited interested amici to weigh in on its approach to these cases. At least two dozen organizations, interest groups, and government agencies submitted amicus briefs. While some groups argued that the Board should retain or revise its existing framework, others urged the Board to abandon its setting-specific approach altogether and permit employers to uphold “facially neutral work rules” that prohibit offensive conduct.

The Board’s Decision

The Board in General Motors opted for the latter approach. Moving forward, the Board will evaluate cases involving abusive conduct according to the same burden-shifting framework the Board has long used to evaluate other cases alleging discrimination based on Section 7-protected activity. Under that framework, as set forth in Wright Line, 251 NLRB 1083 (1980), the General Counsel must initially show that “(1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had 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.” If the General Counsel establishes these elements, the burden then shifts to the employer to prove that it would have taken the same action even in the absence of the Section 7 activity.

The Board called its new approach necessary to ensure “more reliable, less arbitrary, and more equitable treatment” for employers and employees, and sharply criticized the prior setting-specific tests as ineffective, unpredictable, and resulting in the protection of “appallingly abusive” misconduct, including racially and sexually offensive language. A “realignment” of the Board’s doctrine, it held, was required to “honor[] the employer’s right to maintain order and respect” and “avoid potential conflicts with antidiscrimination laws.”

In particular, the Board rejected its longstanding rationale that employers must tolerate certain abusive employee conduct in order to ensure the “meaningful[ness]” of Section 7 activity because disputes over working conditions are “most likely to engender ill feelings and strong responses.” The Board criticized this reasoning and its prior setting-specific standards as “wholly indifferent to employers’ legal obligations to prevent hostile work environments on the basis of protected traits,” as well as employers’ interests in promoting order and respect at work. For these reasons, the Board will no longer take the position that “Section 7 activity necessarily encompasses some undefined amount or degree of abusive conduct with which the discipline could [unlawfully] interfere.”

Without a showing of actual discrimination against Section 7 activity, the Board concluded, it simply could not justify “finding violations of federal labor law against employers that act in good faith to maintain civil, inclusive, and healthy workplaces for their employees” as consistent with the Act’s principles of promoting labor peace. Thus, the Board held, it would no longer stand in the way of employers who fulfill their legal obligation to “take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.”

Implications for Employers

Since 2017, the Board has consistently dialed back limitations that earlier Boards had placed on employers seeking to enforce employee conduct rules. The Board’s General Motors decision, issued by a three-member Republican Board, is consistent with these decisions.

While not unexpected, the Board’s revised test nonetheless is welcome news to employers. As noted in its decision, under the Board’s prior approach, employers struggled to balance the risks of violating the NLRA against their desire to strictly enforce policies that protect the rest of their workforce from offensive and/or discriminatory conduct – particularly given the #MeToo and #BlackLivesMatter movements. Following General Motors, however, the risk of enforcing such policies is significantly lower, given the Board’s statement that it will no longer prioritize Section 7 activity over an employer’s desire (and legal obligation) to maintain a workplace free of discrimination and harassment.

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If you have questions about the impact of the General Motors decision, please feel free to contact one of our experienced labor lawyers.