The National Labor Relations Board (“NLRB” or “Board”) has for years analyzed a variety of circumstances where an employee who was engaged in a form of protected conduct under Section 7 of the National Labor Relations Act (the “Act”) also engages in some form of abusive conduct. Examples are discussed below.
Please note at the outset that an employee who engaged in abusive conduct such as profanity-laced tirades or racially or sexually charged remarks unconnected to any protected activity is clearly subject to corrective action on the same terms as others. Of course, applying discipline to union employees and not to others, or applying harsher discipline against union employees, would invite charges of unlawful discipline under the Act.
In the General Motors decision issued July 21, 2002, the Board overturned earlier precedent and established a unified standard for analyzing claims that the employer unlawfully disciplined an employee who engaged in abusive conduct at the same time he or she was engaged in protected activity. In connection with justifying its decision to overrule previous decisions the Board noted that the existing “setting-specific” standards presented multiple concerns.
There were three primary settings. One involves an outburst toward management. Another involves social media posts and most employee-to-employee interactions. The third is picket line conduct.
In the outburst cases the Board had applied a four-factor test from Atlantic Steel. The factors were: (1) the place of the discussion; (2) subject matter of discussion; (3) nature of the outburst; and (4) whether the outburst was to any extent provoked by an unfair labor practice.
In social media and employee-to-employee cases the Board used a totality of the circumstances test. For picket line conduct matters the question was whether under the circumstances non-strikers would have been reasonably coerced or intimidated by the abusive conduct.
The Board noted that use of these standards had produced inconsistent results, which of course reduced predictability. The Board expressed particular concern that violations found under the existing standards had “conflicted alarmingly with employers’ obligations under federal, state, and local nondiscrimination laws.” This comment alludes to multiple decisions wherein the Board found discipline or discharge unlawful under the Act even though the employees in question made blatantly racist and/or sexist remarks in the course of their Section 7 activities.
Rather than continue the “setting-specific” standards the Board ruled that it would apply the Wright Line standard to cases where an employer is alleged to have unlawfully disciplined an employee who was engaged in Section 7 activity and the employer responds that the reason was the employee’s abusive conduct. The Wright Line analysis has been used by the Board for decades to analyze claims of discriminatory discipline or discharge. It makes sense to follow that standard in these cases as well.
Under Wright Line, the General Counsel (which is the prosecutorial arm of the Board), must prove: (1) the employed engaged in conduct protected by the Act; (2) the employer knew of the conduct; and (3) the employer had animus against the Section 7 activity. The proof of animus must be “sufficient to establish a causal relationship between the discipline and the Section 7 activity.”
If the General Counsel makes the required initial showing, the burden of persuasion shifts to the employer to show that it would have taken the same action in the absence of the Section 7 activity. Requiring the burden of persuasion is another way of saying that the employer must prove it would have taken the same action.
Notably the Board applied this standard retroactively to all cases pending before the Board at this time. Accordingly, an employer who has a charge or case of this nature pending may wish to present additional facts and evidence which are now relevant under the newly established standard.
Bottom line, this case is good for employers and for the fair administration of the Act. It establishes a uniform and, for labor practitioners a familiar, analytical framework for cases that involve both protected and abusive conduct. It should lead to greater comfort for employers when they impose disciplinary action for genuinely abusive conduct.