August 12, 2020

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NLRB’s New Decision Cuts Ties Between Abusive Conduct in the Workplace and Protected Conduct

On July 21, 2020, the National Labor Relations Board issued its decision in General Motors LLC, 369 NLRB No. 127 (2020), overruling decades of precedent granting employees considerable freedom to engage in abusive or offensive conduct in connection with union or other protected concerted activity. In General Motors, the Board adopted the well-known Wright Lineburden-shifting framework for determining whether an employer has lawfully disciplined or discharged an employee for engaging in abusive conduct (e.g., profane, racially inappropriate, and/or sexually inappropriate comments) in the context of union or other protected concerted activity.

The Board also concluded that it “will properly find an unfair labor practice for an employer’s discipline following abusive conduct committed in the course of Section 7 activity when the General Counsel shows that the Section 7 activity was a motivating factor in the discipline, and the employer fails to show that it would have issued the same discipline even in the absence of the related Section 7 activity.” General Motors applies retroactively, meaning that the Wright Line framework now applies to all pending decisions before the Board and its administrative law judges, regardless of the setting in which the abusive or offensive conduct took place.

Under the Wright Line framework, to establish that an employer unlawfully disciplined or discharged an employee for protected activity, the Board’s general counsel must initially show that the discipline or discharge was motivated by the protected activity. To do so, the general counsel must demonstrate that “(1) the employee engaged in protected activity, (2) the employer knew of the activity, and (3) the employer had animus against the protected activity.” If this is shown, the employer “will be found to have violated the Act unless it meets its defense burden to prove that it would have taken the same action even in the absence of the Section 7 activity.” An employer often meets this burden by demonstrating that it disciplined or discharged other employees for similar misconduct who were not also engaged in protected activity. If an employer meets this burden, the general counsel then must prove that the employer’s articulated reason is false or pretextual for a violation of the National Labor Relations Act (NLRA) to be found.

General Motors marks a significant win for employers for three key reasons. First, it brings much-needed consistency, certainty, and clarity to the standard used in these types of cases. Previously, the Board had held that an employer violated the NLRA by disciplining or discharging an employee for abusive or offensive workplace conduct in the context of protected activity unless that conduct was so severe that it lost the Act’s protection. Whether an employee’s conduct lost protection of the NLRA was evaluated by three “setting-specific” standards, which the Board selected depending on the employee’s remarks and the context in which they were made. Under the Board’s prior rulings, the Board and administrative law judges issued a number of decisions granting protection to represented employees who made exceptionally lewd and racially-charged remarks in the workplace. For instance, in General Motors, the employer suspended the employee for cursing and making racially offensive comments towards management in union-related meetings. The administrative law judge found some of the employee’s profane outbursts towards his manager were protected by the NLRA and held that the employer committed an unfair labor practice when it disciplined him for making the admittedly inappropriate comments.

Thus, the Board’s precedent created a catch-22 for employers—discipline employees for engaging in abusive behavior occurring in the context of union activity and face a potential legal challenge before the NLRB or refrain from disciplining the employees for such behavior, implicitly condoning the conduct merely because it occurred in the context of protected activity, and avoid a potential legal challenge before the NLRB. General Motorsremedied this untenable situation. As a result, employers now may be more likely to avoid meritorious unfair labor practice charges in response to terminations or discipline aimed at enforcing company policies against harassment, abuse, or discrimination.

Second, the decision may make it easier for employers to keep the workplace free of profane, racially inappropriate, or sexually inappropriate comments because it eliminates the assumption that an employee’s abusive conduct is tied to the protected activity. In other words, under prior precedent, the Board presumed that if an employer disciplined an employee for abusive conduct in the context of protected activity, then the employer’s discipline was unlawful unless the Board determined that the conduct lost the protection of the Act. Employers may now be able to avoid committing an unfair labor practice by demonstrating that the discipline or discharge was motivated by entirely lawful reasons unrelated to any protected conduct (i.e., because of the abusive or offensive comments) or by demonstrating that they would have disciplined or discharged the employee notwithstanding the protected activity. Employers may still need to show that the discipline or discharge was not in retaliation for engaging in the protected activity. However, they no longer have to contend with a presumption that abusive conduct is connected to protected activity in this context.

Third, the decision brings Board decisional law in line with existing local, state, and federal anti-discrimination statutes, which already require employers to ensure that workplaces are free of discrimination based on familiar protected characteristics, such as race and sex. Put differently, under the new precedent, the Board is less likely to find that employers that discipline employees for racially or sexually offensive remarks to avoid the creation of a hostile work environment have violated the NLRA. Indeed, as NLRB Chairman John F. Ring aptly stated in connection with the issuance of the decision, “For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

As with many other decisions issued by the Board in recent years, including those on workplace rulesGeneral Motors marks yet another reasonable and welcome rebalancing of the scales for employers. It also marks an important and timely win for civility in the workplace, particularly in light of recent national events that have demonstrated the ever-important need to ensure that workplaces are free of racial epithets and sexually inappropriate remarks, regardless of the context in which they are made.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 213

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About this Author

Sean M. Kramer Employment Litigation Attorney Ogletree, Deakins, Nash, Smoak & Stewart San Francisco, CA
Associate

Sean Kramer is an associate in Ogletree Deakins’ San Francisco office. He represents employers in labor and employment law matters, with a focus on traditional labor law and wage and hour class and collective actions. Sean regularly defends clients in unfair labor practice charge proceedings, union elections, and litigation brought by unions before the National Labor Relations Board (NLRB) and in labor arbitrations. He also advises clients on union organizing efforts and on the negotiation, interpretation, and administration of collective bargaining agreements.

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Maria Anastas Labor Lawyer Ogletree Deakins Law Firm
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Maria Anastas is a traditional labor law expert and former NLRB attorney. The overwhelming majority of her practice is focused on representing employers before the NLRB and during union organizing drives, corporate campaigns and collective bargaining. She has earned a national reputation for handling hundreds of union organizing drives. Maria has a broad range of experience handling traditional labor law matters in virtually every industry, including healthcare, manufacturing, warehousing, retail, hospitality, service sector, maritime, trucking and higher education.

Maria is a member of the firm’s traditional labor practice steering committee and speaks extensively at firm and other conferences regarding labor law developments and her significant expertise handling a wide range of traditional labor matters in California and other states.

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