September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Sticks and Stones…The NLRB Rethinks Its Position on Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities

On Tuesday, the National Labor Relations Board (NLRB or Board) issued its much-awaited decision in General Motors, LLC (GM), 369 NLRB No. 127 (2020), in which it held that abusive or inappropriate workplace speech by employees engaged in protected concerted or union activity (PCA) is not protected under the National Labor Relations Act (NLRA or Act) and that employers may discipline workers for engaging in such conduct, provided, the discipline is not shown to be retaliation for protected conduct.

GM reverses over 40 years of Board law which began with the Board’s infamous decision in Atlantic Steel, 245 NLRB 814, 816 (1979), which required employers to tolerate and refrain from disciplining workers for making such PCA-related abusive, racist, sexist and/or offensive remarks.  According to earlier Board decisions, such inappropriate and offensive speech was protected because it was integral to the employees’ PCA and constituted no more than mere “animal exuberance” or impulsive behavior that was not so severe as to strip an employee of their protections under the NLRA, even though that same conduct might otherwise be prohibited by other laws banning harassment and bullying from the workplace.  Accordingly, employers who disciplined employees for making such PCA-related statements were often found to interfere with employees’ statutory rights in violation of the NLRA and compelled to rescind their discipline and to make an affected worker whole.

GM overturns Atlantic Steel’s and other Board decisions presenting the same issue in different settings and rejects their preferential treatment of PCA-related abusive and inappropriate speech.  The Board’s rationale in GM is simple: an employee’s PCA and their inappropriate remarks are not so integral to one another as to be one and the same.  To the contrary, they are separate acts; abusive speech being unprotected conduct which the Board will now differentiate from an employee’s other conduct that is protected.  Moreover, according to GM, absent any connection to PCA, employers are free to discipline workers for engaging in abusive workplace speech because the Act does not “empower the Board to referee what abusive conduct is severe enough for an employer to lawfully discipline.”  Accordingly, the Board concluded that it was not its place to sit in judgment of such discipline unless it was shown that the employer’s discipline of a worker was actually retaliation for the worker’s PCA disguised as discipline for the employee’s unprotected abusive speech.

For the purpose of giving effect to this new approach and regardless of a case’s particular setting, the Board said it would now apply its well-worn test, first set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), to cases involving employees who were disciplined for making PCA-related abusive statements.  This is the test used by the Board to decide cases in which it appears that an employer may have had mixed or multiple motives – one lawful and the other unlawful – for taking adverse action against an employee.  Under Wright Line, the Board’s General Counsel (GC) must establish a causal link between an employer’s adverse action and an employee’s PCA by initially showing that (1) the affected employee engaged in PCA, (2) the employer knew of that PCA and (3) the employer harbored animus against the PCA.  Once the GC makes his initial case, then the employer will be found to have violated the Act unless it meets its defense burden of proving that it would have taken the same adverse action even in the absence of the employee’s PCA.  Typically, an employer will make this defense by showing that it has meted out similar types of discipline to similarly situated employees who were not engaged in PCA.  If an employer credibly presents such proof, then its discipline of a worker for making PCA-related abusive statements will not be found to violate the Act.  However, consistent with Wright Line precedent, if the evidence as a whole “establishes that the reasons given for the employer’s adverse action are pretextual—that is they are either false or not in fact relied upon—then the employer will be found to have failed to prove that it would have taken the same action for those reasons, absent the employee’s PCA and, thus, liable for its adverse action…”

Finally, the GM Board announced that it would give retroactive effect to this new analysis in all pending cases and apply it to all PCA settings involving abusive speech including but not limited to interactions between employees and management, social media and other interactions between employees and interactions occurring on picket lines.

GM is welcome news for employers because it gives them a bright line for measuring what conduct is and is not protected and tells them what they must be able to prove if they elect to discipline employees for engaging in PCA-related abusive language.  Further, it harmonizes the Act with anti-harassment and anti-bullying laws with which employers must comply.  Thus, employers no longer face the dilemma of possible liability under one of these two laws because it was compelled by labor law to refrain from taking necessary adverse action.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 206
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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

415-774-2934
James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

212-634-3025
John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the...

202 747 3375
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