Hunton Employment & Labor Perspectives

Over the past 40 years, the National Labor Relations Board (the Board) has grappled with the appropriate balance between an employer’s right to discipline an employee for abusive behavior and an employee’s right to engage in Section 7 activity. Much to the dismay of employers, this balancing act has historically tipped heavily in favor of protecting an employee’s right to engage in Section 7 activity at the expense of an employer’s right to discipline its employees for conduct such as using racial slurs while picketing, engaging in sexist behavior, or yelling obscenities at a supervisor while discussing wages. As a result, the Board has issued countless decisions finding an employer violated the National Labor Relations Act (the Act) for disciplining employees who engage in objectively offensive, racist, and abusive conduct while also engaged in Section 7 activity.

However, on Tuesday the Board released its much anticipated decision in General Motors, 369 NLRB No. 127 (July 21, 2020), and reversed three setting-specific standards it has previously applied to determine whether an employee’s abusive conduct loses the protection of the Act. In the decision, the Board acknowledged that “by using these standards to penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace, the Board has strayed from its statutory mission.” Id. at 1.

The Board’s decisions applying these now-overturned standards increasingly frustrated employers as the Board seemingly gave an employee carte blanche to engage in objectively egregious and inappropriate workplace conduct without consequence, so long as the conduct occurred while the employee was also engaged in Section 7 activity and did not result in or threaten physical injury or property damage to the employer.  For example, the Board’s decision in General Motors overturned the four-factor Atlantic Steel test the Board applied when determining whether an employee’s outburst to management lost protection of the Act. The test set forth in Atlantic Steel was utilized by the Board to find that an employee’s reference to his employer’s vice-president as a “stupid f**king moron” was not so offensive as to lose the protection of the Act. Id. at 4-5 (citing Tampa Tribune, 351 NLRB 1324 (2007)).

Also now overturned is the “totality of the circumstances” standard the Board applied to employee’s social media posts. Applying this standard, the Board has found that an employer violated the Act for terminating an employee for a Facebook post wherein the employee wrote the following regarding a supervisor and an upcoming union election: “Bob is such a NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!.” Id. at 6 (citing Pier Sixty, 362 NLRB 505 (2015)).

Finally, the Board’s decision overturned the highly controversial Clear Pine Mouldings standard the Board applied to employee conduct on picket lines. Applying this standard, the Board has found the most egregious racially and sexually offensive language to be protected because it was used on the picket line and not so threatening to lose the protection of the Act. The Board, for instance, has found, contrary to virtually any notion of common sense, that a picketer’s use of the N-word was protected under the Clear Pine Mouldings standard. Id. (citing Airo Die Casting, Inc., 347 NLRB 810, 812 (2006)). Under this same standard, the Board also held that an employer violated the Act by disciplining strikers who called nonstrikers “whores.” Id. (citing Calliope Designs, Inc., 297 NLRB 510, 521 (1989)).

In its decision, the Board acknowledged that these “standards for analyzing abusive conduct . . . have been wholly indifferent to employers’ legal obligations to prevent hostile work environments on the basis of protected traits.” Id. at 7. Indeed, these standards placed employers in a statutory catch-22: risk violating the National Labor Relations Act by disciplining an employee for abusive conduct or risk violating federal, state, and local EEO laws by not disciplining an employee for discriminatory or harassing conduct. By reversing these standards, the Board recognized it “will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.” Id. at 10.

The Board also rejected its previously-stated rationale justifying these more lenient standards that provided employees with great latitude when exercising Section 7 rights. The Board acknowledged its previously-articulated rationale behind these deferential standards was that “there are certain parameters within which employees may act when engaged in concerted activities. The protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the most likely to engender ill feelings and strong responses.” Id. at 8. The Board flatly rejected this long-held rationale, calling it a misconception that an employer must tolerate abusive conduct from its employees for Section 7 rights to be meaningful. Id.

Going forward, the Board will now apply the familiar Wright Line framework to cases “where the General Counsel alleges that discipline was motivated by Section 7 activity, and the employer asserts it issued discipline because of abusive conduct.” Id. at 9. Under this standard, the General Counsel must prove that an employee’s protected union activity was a motivating factor in his or her discipline. Id. at 10. If this burden is met, an employer will nevertheless prevail if it can demonstrate it would have taken the same disciplinary action even in the absence of Section 7 activity. Id.

This shift by the Board should be welcomed news to employers. With this decision, employers no longer are required to make the difficult decision between committing an unfair labor practice and allowing employees’ abusive, racist, sexist or other wholly inappropriate conduct to go unremedied simply because it was tangentially engaged in the course of Section 7 activity. Rather, employers are now free to discipline employees consistent with their work rules and policies, so long as that discipline is not pretext for discriminating against an employee for engaging in Section 7 activity.