NLRB Changes Course On Judging Discipline For Offensive Or Abusive Outbursts

You may remember that last year, the National Labor Relations Board (Board) invited public comments on whether it should reconsider the standard it uses to determine whether discipline for profane outbursts or offensive statements violates the National Labor Relations Act (NLRA or Act). As we discussed in April, this issue arises when an employee engages in conduct protected by Section 7 of the NLRA, e.g., complaining about terms and conditions of employment, but uses unprofessional, abusive, profane or offensive language.

In its recent decision in General Motors LLC, the Board has now revised its standard for judging such cases. The Board will no longer use the four factor Atlantic Steel test for judging outbursts toward management in the workplace, the Clear Pine Mouldings test for judging abusive behavior on the picket line, or the “totality of circumstances test” for exchanges between employees on social media. The Board explains in General Motors: “While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.”

Instead, the Board will now evaluate all such cases under the same Wright Line standard it uses for other discipline cases. The Board found that abusive conduct which occurs in the context of Section 7 activity is not analytically inseparable from the Section 7 activity itself. Thus, the focus of the analysis should be on causation – did the Section 7 activity cause the discipline or did the abusive conduct cause the discipline?

This change is significant for employers who must be able to consistently enforce civility and harassment policies without fear of an unfair labor practice charge. We wholeheartedly agree with NLRB Chairman John Ring’s comments: “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace. For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.” We encourage employers to review the General Motors decision.

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