Yesterday, the National Labor Relations Board (NLRB) in General Motors LLC announced a big win for employers by changing the standard under which it will evaluate discipline issued to employees who make abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity that would otherwise fall under the protection of the National Labor Relations Act (NLRA).

The burden-shifting standard announced yesterday applies to conduct in the workplace, on social media, or on a picket line where the NLRB alleges that discipline was motivated by the protected activity, but the employer asserts that it was motivated by abusive conduct. If the employer can adequately establish that it would have disciplined the employee(s) regardless of what led to the outburst, the discipline should be found lawful.

Previous Standard for Evaluating Employees' Offensive or Abusive Conduct

In the labor relations context, union and non-union employees taking part in protected concerted activity—actions taken to improve their wages, hours, or working conditions—have been "permitted some leeway for impulsive behavior" and the degree to which an employer had to permit it was "balanced against an employer's right to maintain order and respect." However, there is a point where the conduct can be so offensive it loses protection under the NLRA.

To impose a framework for determining whether certain behavior has crossed the line, the Board previously followed a four-part totality of the circumstances test set forth in Atlantic Steel:

  1. Where did the conversation take place;

  2. What was the subject matter of the discussion;

  3. What was the nature of the employee's outburst; and

  4. Was the outburst in any way provoked by an employer's unfair labor practice.

But the Atlantic Steel analysis was inconsistently (some might say subjectively) applied, making it hard for employers to know where to draw the line between protected activity and unacceptable misconduct. The current Board also found a number of other problems with the Atlantic Steel test:

The standard did not sufficiently recognize that serious abusive conduct is not protected by the Act. Absent such recognition, disciplining employees for making points about their terms and conditions of employment in an abusive manner was effectively equated to disciplining them for engaging in the protected activity itself.

The standard did not provide employers the opportunity to establish that it was the abusive conduct that led to the discipline, and that it would have disciplined the employee regardless of the subject matter.

The standard allowed conduct that would likely run afoul antidiscrimination laws and lead to inconsistent application of an employer's anti-harassment and anti-discrimination policies.

The Underlying Case

In the General Motors case decided yesterday, a union employee repeatedly engaged in "profane and racially offensive conduct towards management." Without going into detail here, suffice it to say that the employee objected profanely to the lack of overtime coverage for employees away for training, portrayed managers as slave masters, made implied threats against managers, and, during a meeting, blasted music that contained "profane, racially charged, and sexually offensive lyrics." Each incident led to progressively longer suspensions ranging from three to 30 days.

The administrative law judge who heard the case initially determined that the employee's outbursts regarding overtime coverage was not so offensive that it was unprotected, but the implied threats, portrayal of managers as slave masters, and the blaring offensive music crossed the line.

The New Standard

Given the nature of the outbursts in General Motors, and the inconsistent application of the Atlantic Steel standard, the Board issued a Notice and Invitation to File Briefs in this matter. Parties were invited to address any or all of five issues relevant to these kinds of cases:

  1. Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?

  2. To what extent should this principle remain applicable with respect to profanity or language that is offensive to others on the basis of race or sex?

  3. Should the Board continue to consider the norms of the workplace, particularly whether profanity is commonplace and tolerated? If the norms of the workplace are relevant, should the Board consider employer work rules, such as those that prohibit profanity, bullying, or uncivil behavior?

  4. Should the Board adhere to, modify, or abandon the Atlantic Steel standard to the extent it found that racially or sexually offensive language on a picket line did not lose the protection of the Act? To what extent, if any, should the Board continue to consider context—e.g., picket line setting—when determining whether racially or sexually offensive language loses the Act's protection? What other factors, if any, should the Board deem relevant to that determination? Should the use of such language compel a finding of loss of protection? Why or why not?

  5. What relevance should the Board accord to antidiscrimination laws such as Title VII in determining whether an employee's statements lose the protection of the Act? How should the Board accommodate both employers' duty to comply with such laws and its own duty to protect employees in exercising their rights protected under the Act?

Unions, business groups, and the NLRB's General Counsel all weighed in. Unions and labor-side counsel advocated for the retention of the Atlantic Steel standard. The NLRB's General Counsel, General Motors, and business groups argued in favor of a new standard that would either (1) categorize certain types of abusive conduct per se unprotected in all settings, or (2) affirm employers' enforcement of facially neutral work rules prohibiting profane, racist, or sexist conduct unless the evidence shows that the employer used discipline for rule violations as a pretext to discipline employees for engaging in protected activity.

Ultimately, the Board determined that these issues should be treated the same as other discipline cases. Using what is referred to as the Wright Line test, the Board follows a burden shifting analysis:

  • The NLRB's General Counsel 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—which must be proven with evidence sufficient to establish a causal relationship between the discipline and the protected activity.
  • Once the General Counsel makes their initial case, the employer has the burden to prove that it acted lawfully because it would have taken the same action even in the absence of the protected activity.

According to the Board, using this analysis "promises more reliable, less arbitrary, and more equitable treatment of abusive conduct" in the workplace, on social media, or on a picket line. Because the Board will apply the Wright Line standard retroactively, it remanded the case to the judge for her to analyze the alleged conduct in light of the yesterday's decision.

Employer Takeaways

  • Employers should review their workplace rules and policies to ensure they are facially neutral; they can promote a harmonious workplace free of harassment and discrimination, but they cannot prohibit employees' engagement in protected concerted activity.
  • Workplace rules and policies must be enforced consistently, regardless of the circumstances. Inconsistent treatment effectively eviscerates the rule, seriously undermining a defense that the employer would have disciplined the employee regardless of the subject matter.
  • When disciplining employees for offensive or abusive conduct, document the specifics and cite the applicable rule or policy.
  • Before imposing the discipline, dispassionately review the facts to ensure the level of discipline was not motivated by the employee's protected activity.