NLRB Revises @#!*&^% Abusive Conduct Rules

A sensitive area of labor law has been how to treat worker conduct and language which has been disruptive, profane, obscene or even racist when the employee is engaged in activity protected under the National Labor Relations Act (NLRA). On July 21, 2020, the three-member National Labor Relations Board (NLRB)¹ issued new policy on this subject in General Motors.²

The Facts

The employer, General Motors, engages in the manufacture and nonretail sale of automobiles at its Fairfax assembly facility in Kansas City, Kansas.³ As relevant here, the employees are represented by the Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 31. The charging party, Charles Robinson, has worked for the employer for over 20 years and is an electrician. Since 2012, he has been a full-time skilled trades committee person for the union. As such, he represented first  and second-shift bargaining unit members with contract concerns, discipline and bargaining.

As a committee person, Robinson regularly met with members of management to discuss bargaining issues. The events in issue center around three “confrontations” between Robinson and management.⁴

On April 11, 2017, Robinson had a heated argument with management related to cross-training of employees. Robinson, acting as a committee person, said he “did not give a f*** about your cross-training” and the manager could “shove it up [his] f****** a**.” He was suspended for three days.

About two weeks later, Robinson, again in his union position, attended a meeting regarding subcontracting with two other union officials and a dozen managers. When one of the managers was speaking, Robinson was very loud and started pointing his finger. He was told to lower his voice. He did and mockingly made a comment of: “Yes, Master, Your Master Anthony.” He also stated that the manager wanted him “to be a good Black man.”⁵ For this he was suspended for two weeks.

The last incident occurred six months later and involved a meeting with another union committee man and four managers. Robinson kept repeating the same questions and then said he would “mess {the manager} up.” He then played loud, profane music on his cell phone for 10 to 30 minutes, disrupting the meeting. For his actions, Robinson was suspended for 30 days.

On the basis of these facts, a complaint issued alleging employer violations of Sections 8(1) and (3) of the NLRA by the company issuing three disciplinary actions against Robinson as he engaged in protected activity on behalf of the union. A hearing was held before an administrative law judge who issued a decision finding that the employer violated the NLRA when it suspended Robinson for the April 11th incident, but not the two other suspensions. The judge applied the Atlantic Steel Co. standard in arriving at her conclusion.⁶  Both parties filed exceptions to the decision. The NLRB issued its decision on July 21, 2020.

The Board Decision

Under the NLRA, an employee who engages in Section 7 activity has the protections of the act. The issue to be resolved in General Motors is, when does an employee who is engaged in protected activity lose that protection because of their disruptive conduct or profane language? 

The board reviewed the three types of situations when abusive conduct and or profanity of the employee loses the protections of the NLRA. It looked at the standards used in workplace cases, social media matters and picket line misconduct.

The first and most significant are situations involving workplace discussions with management. The four-part standard was set forth in Atlantic Steel Co.⁷ There, the board considered four factors: (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 employee’s actions were provoked by the employer’s unfair labor practice.⁸ As applied in practice this standard did not assign any specific weight to the four factors and often resulted in inconsistent conclusions.⁹

With respect to conduct involving social media cases, the board has applied a “totality of circumstances” standard. The board has analyzed whether social media posts are unprotected by the act on the basis of disparagement or disloyalty to the employer.¹⁰

The final type of cases involved picket line misconduct. Clear Pine Mouldings¹¹ held that, where employee picket line “misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the act.” Cases applying the standard have found that picket line conduct is unlawful only where it involves an overt or implied threat or where there is a reasonable likelihood of an imminent physical confrontation. 

The board indicated that, not only have these past standards resulted in inconsistent conclusions, but they also make it difficult for an employer to meet his EEO obligation to prevent hostile work environments on the basis of hostile traits. Employees subjected to work, picket line or social media racist or sexist comments or conduct may be impacted by the conduct. 

Considering the inconsistency of the standards, the board decided to apply a different rule for deciding cases where employees engage in abusive conduct or language in connection with Section 7 activity and the employer asserts it issued discipline because of the abusive conduct. It turned to a well-established standard, i.e. Wright Line.¹² The new rule applies where the matter is founded in the workplace, social media or the picket line.¹³

Under the familiar Wright Line standard as applied by the board in abusive conduct cases, a shifting burden of evidence is again applied. The NLRB general counsel has the initial burden of showing that (1) the employee in issue had engaged in Section 7 activity; (2) the employer had knowledge of that activity; and (3) the employer had animus of such activity which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. General counsel is not required as part of his initial burden to disprove the existence of other lawful motivating factors for the discipline.¹⁴ 

Once the general counsel makes his initial case, the employer will be found to have violated the act unless it meets its burden to show it would have taken the same action even in the absence of the Section 7 activity.¹⁵ If the evidence as a whole establishes that the reasons given by the employer’s actions are pretextual, the employer has failed to meet its burden.

The board held that the application of Wright Line to these cases promises more reliable, less arbitrary and more equitable treatment of abusive conduct cases than under past standards. It will also avoid potential conflicts with antidiscrimination standards.

Since the administrative law judge applied the Atlantic Steel standard in her decision, the board remanded the case back for a proper review under Wright Line.¹⁶ On remand the general counsel conducted a further investigation and determined there was insufficient evidence to establish a prima facie case. The complaint was then dismissed.¹⁷ 

General Motors - Takeaway

The NLRB has frequently been confronted with the issue of evaluating situations where employees, engaged in the legal exercise of Section 7 protected activity, have been disciplined or discharged when their conduct has been deemed abusive, disruptive, obscene, profane or even racist and violated employer work policies. These cases take a variety of forms, including actions in the workplace, the picket line and social media. Oftentimes they occur in circumstances that are heated and emotionally charged. Employees seeking to exercise their Section 7 rights and employers attempting to maintain workplace order and discipline are pitted against one other. Where does such conduct become an unfair labor practice and not lawful discipline? 

Until the decision in General Motors, the board has invariably sought to balance the various competing interests to reach a decision on each fact pattern. The results have been a variety of tests, depending upon the alleged violation. The tests themselves have been difficult to apply and results have been inconsistent. In General Motors the board sought to clarify the decision making process by relying on an old standard, the Wright Line test. The decision was issued by a three-member board with no minority representation present – no dissent. Is this the answer?

The board stated that, under prior standards, the Section 7 activity engaged in by the employee was found to be analytically inseparable from the abusive language or conduct committed in the course of the Section 7 activity. It concluded the two actions are severable. The causal connection between protected activity and discipline is properly in dispute.¹⁸ The board said the result will be that an employee who engages in protected activity and associated abusive conduct will be treated the same as employees who engage in abusive conduct alone. This clearly limits employees’ Section 7 rights. 

As a result of this division, the board concluded that a Wright Line analysis was appropriate. It is obvious from the start that, although the new rule may bring consistency, it will also diminish the value of employees’ Section 7 rights. The new rule is definitely pro-management. 

The board’s analysis incorrectly separates the Section 7 activity from the abusive language/conduct. In the field of labor relations, where discussions are often heated and emotional, this is not reasonable. It will chill any actions by the union. Take, for example, the General Motors case itself, where Robinson, as a union representative, was actually engaged in Section 7 activity. His actions and language were crude, but did that take him out of the protections of the act? Rather than provide a passive, submissive approach, he expressed himself in an adversarial manner – a hallmark of labor-management relations in America. 

Context is important. Say the employer has and enforces a strict civility, anti-profanity policy. A union representative is engaged in contract negotiations situations that often become heated and emotional. Must the representative refrain from profanity or “pounding the table” for fear of being disciplined? Under General Motors, the answer could be yes. The context and employees involved are important. The rule could have a chilling effect on normal union activities.

A major flaw of the board’s General Motors test is that it treats employees who are engaged in Section 7 activity the same as all other employees. This is clearly not true, otherwise there would be no NLRA. Employees engaged in Section 7 activity are treated differently – they are protected. One cannot break the suspected protected activity into parts where the conduct/language is isolated. An employer may have a facially neutral policy against profanity or conduct, but should this be equally applied in the emotionally charged environment of labor relations? 

Under the General Motors test an employer can escape liability if it would have taken the same action even in the absence of Section 7 activity.¹⁹ If the employer has a strict civility, no profanity policy and applies it religiously, does this also apply to all protected union activity?  Would the employer only have to establish that it disciplined any employee who used profane language? Is that a fair standard to use when a union representative uses profanity in a heated, emotional setting, to zealously defend an employee in a termination grievance matter or a local union president making a point at a bargaining table? The average employee is never placed in these unique settings.

Unions and employees must be cautious when using profanity or displaying disruptive conduct in the workplace under General Motors, particularly if the employer maintains a strong neutral policy against disruptive conduct or profanity. They could be more easily disciplined than under the prior standards. 

Management certainly has a vested right to maintain order and discipline in the workplace, but the General Motors test tilts the scale too far at the expense of employees’ protected rights. Rather than change the rules entirely the board should have provided more guidance to already existing standards that would have also been useful in cases involving work in the work place, picket line misconduct and social media cases.²⁰ To suggest, however, that a Wright Line standard is to be used is inappropriate and only serves to put a chilling effect on employee and unions exercise of their protected rights. 

Conclusion

Again, the NLRB has sought to provide a black letter standard to very complex and varied situations.²¹ On the one hand, management is totally within its rights to have reasonable policies to maintain order and discipline in the workplace. Reasonable rules are the hallmark of good management. Employees are guaranteed the exercise of Section 7 protected rights under the NLRA. It is the intersection of these two ideals that create friction.

The policy of the NLRB had been a balancing act under the Atlantic Steel standard. Decisions issued were not consistent and little guidance was provided to the parties. Recently, the board adopted the Wright Line test, a tried-and-true test in dual-motive cases which does not fit. It minimizes the value of Section 7 protected rights. Perhaps a better approach is to rework the former standard, Atlantic Steel, and other standards to make them more consistent and practical. With a new administration in Washington, perhaps General Motors may not be the last @#!*&^% word in this sensitive area of labor relations. Stay tuned.

Endnotes

¹The Board consisted of Chairman John F. Ring, Member Marvin E. Kaplan and Member William J. Emanuel. The composition of the Board did not include any minority Democratic members at the time the decision was issued.

²369 NLRB No 127 (2020).

³Id. at p.12 (ALJ decision).

⁴Id. at p. 2 (Board decision).

⁵Robinson was Black. Id. at  p. 15, n. 15.

⁶245 NLRB 814 (1979). A further discussion of the Atlantic standard follows at text relating to n. 7, infra.

⁷Id.

⁸Id. at 816.

⁹General Motors, 369 NLRB at pp. 4-5. The Board provided several examples of past cases that inconsistently applied the Atlantic Steel standard.

¹⁰The Board referenced NLRB Electric Workers Local 1229, 346 U.S. 464 (1953).

¹¹268 NLRB 1044 (1984).

¹²251 NLRB 1083 (1980).

¹³General Motors, 369 NLRB at p. 9, n. 22.

¹⁴Id. at p. 10.

¹⁵Id.

¹⁶It is interesting to note that the ALJ specifically noted that if she had applied the Wright Line test to the facts her decision would have been the same. Id. at 24.

¹⁷Motion of Counsel for the General Counsel to Remand Proceedings to Region 14. October 21, 2020.

¹⁸General Motors, 369 NLRB at p. 9.

¹⁹Id. at p.10.

²⁰For example the Board could have provided guidance as to the weight given to each of the Atlantic Steel factors or if separate standards should apply to union representatives doing official duties. The Board also might establish some guidelines that conduct or language creating a hostile work environment is presumed to remove the employee from protections of the Act.

²¹See generally, Boeing, 365 NLRB No. 154 (2017) where the Board sought to simplify neutral work policies and ended up creating a new “Category” procedure that has not simplified much.