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NLRB Decision Gives Employers More Leeway in Disciplining Employees Who Engage in Abusive Conduct in NLRB Decision Gives Employers More Leeway in Disciplining Employees Who Engage in Abusive Conduct in

NLRB Decision Gives Employers More Leeway in Disciplining Employees Who Engage in Abusive Conduct in Connection with Protected Activity

With deference to an employer’s ability to maintain a civil and respectful workplace, in a decision issued on July 21, 2020, the National Labor Relations Board (“NLRB” or the “Board”) modified the standard for analyzing whether disciplining or discharging employees for abusive conduct (including profane, racist, and sexually unacceptable remarks) that also occurs in the context of protected union activity violates the National Labor Relations Act (“NLRA” or the “Act”). In that case, the Board held that the Board’s already familiar Wright Line standard focusing on causation will apply in such situations. The Wright Line standard requires proof that an employer’s animus against protected activity was a motivating factor in the discipline or discharge, and then shifts the burden to the employer to prove it would have taken the same action even in the absence of the protected activity.

Applying the Wright Line standard displaces a number of context-specific standards, which instead aimed at deciding whether an employee’s speech had or had not lost protection under the Act. The decision criticizes the prior standards as creating inconsistent outcomes and being in tension with antidiscrimination laws. The Board proclaimed that absent evidence of discrimination against protected activity, “we fail to see the merit of finding violations of federal labor law against employers that act in good faith to maintain civil, inclusive, and healthy workplaces for their employees.”

Concerted activity is protected under Section 7 of the NLRA. Section 7 of the Act guarantees employees the right to self-organize, engage in union activity, and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

Previously, in asking whether speech lost its Section 7 protection under the Act, the Board had applied differing standards for: (1) outbursts to management in the workplace (a four-factor test); (2) social media posts and conversations among employees in the workplace (totality of circumstances test); and (3) picket-line conduct (whether nonstrikers would reasonably have been coerced or intimidated by the abusive conduct). These standards were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act. However, the Board now has rejected this view, finding the idea flawed that Section 7 activity is analytically inseparable from abusive conduct committed in the course of Section 7 activity, stating “we will not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful.”

The Board now takes the position that in applying those setting-specific standards, its prior decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination laws. Under each of those tests, the Board had found that the following conduct retained protection under Act, and that employers violated the Act in issuing discipline or discharge to employees engaging in such speech:
 
  • A barrage of profane attacks against the owner of an employer during a meeting in which the employee also raised concerted complaints about compensation, including a threat that the owner would regret firing him, if he did;[1]
  • A Facebook post stating that a certain manager “is such a NASTY MOTHER F***** don't know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!”;[2]
  • A white employee who, while picketing, shouted racial slurs to Black replacement workers.[3]
The Board noted that in each of those cases, it was entirely plausible that the employer’s decision was based entirely on abusive conduct rather than union activity. Yet, they were found to have violated the Act because the Board found that the speech was protected.

The Board’s decision comes at a time when employers are exercising zero tolerance for racist and sexist behavior and are under more scrutiny to do so. The Wright Line standard provides more latitude for employers to remove bad actors from its workplace for abusive conduct, regardless of context. As always though, consistency is key. As referenced above, under the Wright Line standard, if an initial showing is made that an employer’s animus against protected activity was a motivating factor in the discipline or discharge, the burden then falls to the employer to prove it would have taken the same action even in the absence of the protected activity. One way to do that is showing consistent discipline of other employees who engaged in similar or abusive or offensive conduct.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
 
[1] Plaza Auto Center, Inc., 360 NLRB 972 (2014).
[2] Pier Sixty, LLC, 362 NLRB 505 (2015).
[3] Cooper Tire & Rubber Co., 363 NLRB No. 194 (2016).
 
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