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Federal - NLRB Decision Modifies Standard for Addressing Offensive Outbursts During Protective Activity

On July 21, 2020, the National Labor Relations Board (NLRB) released its decision in General Motors LLC (14-CA-197985) changing the legal standard it will use to determine whether employees were lawfully discharged or disciplined when they engage in abusive conduct in connection with National Labor Relations Act (NLRA) § 7 protected activity. § 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

Under General Motors, the NLRB reviewed the following scenarios where an employer discharged an employee who:

  • Used profanity against, and falsely attacked the character of, their employer’s owner during a meeting where the employee also raised concerted pay complaints;
  • Posted on social media a profane, false character attack against a manager and the posting also promoted union representation voting; and
  • Shouted racial slurs while picketing.

Previously, the NLRB would apply the following setting-specific standards to determine an NLRA violation:

  • The four-factor Atlantic Steel test for workplace outbursts to management that considers:
  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.
  • The totality of the circumstances for social-media posts and most cases involving workplace conversations among employees.
  • The Clear Pine Mouldings Standard for picket-line conduct which asks whether, under all of the circumstances, nonstrikers reasonably would have been coerced or intimidated by the abusive conduct.

However, in General Motors, rather than using a setting-specific standard, the NLRB is applying the Wright Line Standard that presumes that employee discipline based on their abusive conduct in the course of § 7 activity violates the following NLRA protections:

  • Employees may not be discriminated against employees because of their union activities or sympathies under §§ 8(a)(3) and (1)); or
  • Employers may not interfere with employee rights, even when no union activity is involved, under § 8(a)(1).

However, under the Wright Line Standard, these NLRA protections do not apply if the employee’s abusive conduct essentially disqualifies them – in other words, they lose the act’s protections. Subsequently, the NLRB decided that abusive conduct and § 7 activity are not “analytically inseparable” under the Wright Line Standard and instead, the General Counsel (who is a president-appointed individual, independent from the NLRB, who investigates and prosecutes unfair labor practices) must show that:

  • The employee engaged in § 7 activity;
  • The employer knew of that activity; and
  • The employer had hostility against the § 7 activity, which must be proven with evidence sufficient to establish a foundational relationship between the discipline and the § 7 activity.

If the General Counsel proves these elements, then the employer must prove it would have taken the same action against the employee even in the absence of their § 7 activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct. The importance of this decision is the NLRB’s shift from using setting-specific standards, when employees are discharged or disciplined by their employer for abusive conduct during § 7 protected activity, to the Wright Line Standard. According to the NLRB, “while these [setting-specific] tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.”