Labor Board Streamlines Test For Evaluating Abusive Outbursts During Protected Activity

  • Jul 27, 2020
  • NLRB
  • Laura I. Bernstein

As most employers know, emotions can run high in the workplace and employees sometimes say or do something inappropriate or abusive in the heat of the moment.  While employers generally have had leeway to address these outbursts as they wish, the issue has always been more complex when this behavior arose in the course of protected activity.

Now, the National Labor Relations Board (NLRB) has shed more light on this question by changing the standard they will use to evaluate whether discipline or discharge for such outbursts during protected activity is legal under the National Labor Relations Act (“the Act”).

What Happened

In the case at hand, the employee was a union committeeperson at a General Motors facility in Kansas. He was suspended on three occasions for inappropriate outbursts:

–  The first incident involved a charged discussion with his manager about overtime during which he yelled and told the manager to “shove it up [his] f******’ ass”;

–  The second suspension arose from a meeting with union committee members and managers where the employee used profanity and made racially-charged statements, including calling his manager “Master” and stating that the manager wanted him “to be a good Black man.”; and

–  The third incident, during another meeting with managers and union committee members, involved the employee playing loud music on his phone that contained profanity and racially and sexually offensive lyrics for 10 to 30 minutes.

Previously, the NLRB used three separate, context-specific standards to evaluate whether an employer lawfully disciplined an employee based on outbursts that occurred during the course activity protected by the Act. If the outburst occurred in the workplace, the NLRB evaluated the place of the discussion, its subject matter, the nature of the outburst and whether it was provoked by the employer’s unfair labor practice. If the outburst took place in the context of a post on social media, they simply looked at the totality of the circumstances. Finally, if the abusive outburst occurring on a picket line, the NLRB would analyze whether non-strikers would have reasonably been coerced or intimidated by it.

What the NLRB Will Do Now

In this General Motors case, the NLRB decided to scrap the three context-specific standards on the basis that they yielded inconsistent outcomes, failed to take into account employers’ arguments that they would have disciplined the employee regardless of when the activity took place, and potentially ran afoul of antidiscrimination laws. Now, they will apply their familiar burden-shifting analysis (called the “Wright Line test” for the case in which it was established). Under this analysis, the initial burden for establishing that an employer violated the Act for disciplining or terminating an employee for offensive outbursts in the course of protected activity requires three elements:

  1. The employee engaged in activity protected by the Act;
  2. The employer knew of the protected activity; and
  3. There is a causal relationship between the discipline and the protected activity.

Once this initial showing is made, the burden shifts back to the employer to show that they would have taken the same action in the absence of the employee’s protected activity.

As a result of this decision, the NLRB remanded the case for reevaluation under the Wright Line test.

Bottom Line

This decision should provide employers more confidence to address employees’ abusive, profane, or racist outbursts, even if they occur during the course of otherwise protected activity. However, employers will still need to be deliberate in their analysis of a given situation, since Wright Line is such a fact-specific analysis.