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NLRB Sets Uniform Analysis for Evaluating When Employees Forfeit NLRA Rights Because of Offensive Outbursts During Protected Activity
Practical Law Legal Update w-026-7386 (Approx. 5 pages)
NLRB Sets Uniform Analysis for Evaluating When Employees Forfeit NLRA Rights Because of Offensive Outbursts During Protected Activity
by Practical Law Labor & Employment
| Published on 02 May 2023 • USA (National/Federal) |
In General Motors LLC, the National Labor Relations Board (NLRB) held that cases involving employer discipline of employees for offensive or abusive behavior in the course of activity otherwise protected under Section 7 of the National Labor Relations Act (NLRA) will now be decided under the Wright Line standard.
On July 21, 2020, in General Motors LLC, the panel (Board) heading the NLRB's judicial functions held that:
- Cases involving employer discipline of employees for engaging in offensive or abusive behavior in the course of activity otherwise protected under Section 7 of the NLRA are to be decided under the Wright Line standard. When the NLRB's General Counsel alleges that employee discipline was motivated by Section 7 activity and the employer asserts it was motivated by abusive conduct, causation is at issue, and as in any Wright Line case:
- the NLRB General Counsel must initially show that the employee engaged in Section 7 activity, the employer knew of that activity, and the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity; and
- if the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity.
- The Wright Line standard replaces setting-specific standards the Board has long used when deciding whether an employer unlawfully disciplined an employee based on abusive conduct that is part of the "res gestae" of Section 7 activity, including:
- the four-factor Atlantic Steel test for confrontations with managers or supervisors (245 N.L.R.B. 814 (1979));
- the totality of circumstances test for confrontations with coworkers and social media posts (see Desert Springs Hosp. Med. Ctr., 363 N.L.R.B. No. 185 (May 10, 2016); Pier Sixty, LLC, 362 N.L.R.B. 505 (Mar. 31, 2015)); and
- the tending to coerce or intimidate (under all of the circumstances) test for confrontations on picket lines (Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044 (1984)).
- All relevant discipline cases are overruled to the extent they are inconsistent with this case.
- This decision is to be applied retroactively to all pending cases in which the Board would have determined, under one of its setting-specific standards whether an employee forfeited the NLRA's protections through abusive conduct.
The Board previously solicited amicus briefs in this decision (see Legal Update, NLRB Invites Briefs Regarding NLRA Protection for Profane or Offensive Statements).
This decision should reduce the occasions where the NLRB orders employers to reinstate employees discharged for racist, sexist, and other harassing or offensive conduct previously immunized as part-and-parcel of concerted activity. It should also reduce conflicting compliance obligations under the NLRA and antidiscrimination laws.
UPDATE:
On May 1, 2023, in Lion Elastomers LLC, a split Board panel overruled General Motors and restored the setting-specific standards precedent that General Motors had overruled (372 N.L.R.B. No. 83 (May 1, 2023). For more information on Lion Elastomers, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.