NLRB Reverses Obama--Era NLRB Rulings which Protected Employees who Engaged in Obscene, Racist and Sexually Harassing Speech
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
July 23, 2020
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In welcome relief to employers, on July 21, 2020, the National Labor Relations Board (“NLRB” or “Board”) reversed much maligned rulings from the Obama era which gave protection to employees who engaged in profane, obscene and other abusive speech simply because they were engaged in protected activities at the time of their misconduct. Under these Obama-era decisions, the NLRB had taken the position that employees should be permitted leeway for impulsive – but inappropriate – behavior when such behavior occurred in connection with rights protected by Section 7 of the National Labor Relations Act. Those rights include the right to form a union, to collectively bargain for changes in wages and working conditions and to participate in other concerted activity for the purpose of collective bargaining or other mutual aid or protection.
The NLRB’s July 21, 2020 decision reversing the Obama-era standards came in General Motors LLC, which arose from the suspensions of a GM employee, Charles Robinson, who served as union committeeperson at a GM automotive assembly facility. Robinson was suspended three times for three different abusive exchanges. Robinson first had a heated exchange with a manager regarding an overtime coverage issue. During the exchange, Robinson repeatedly used the “f” word with the manager, including telling the manager to “shove it up his f$%! ass.” Robinson received a 3-day suspension. A few days later, Robinson, while attending a meeting about subcontracting with union representatives and management, mockingly acted as a caricature of a slave while referring to a member of management as “Master.” Robinson was suspended for 2 weeks for this conduct. Months later Robinson attended a manpower meeting with managers in which he threatened to “mess up” a manager and then began playing loud music on his phone that contained profane, racially charged, and sexually offensive lyrics. Robinson was suspended for 30 days for this incident. Under Obama-era Board decisions, whether the suspensions were lawful required consideration of several factors, including the place of the discussions, the subject matter of the discussions, the nature of the employee’s outbursts and whether the outbursts were provoked by the employer’s unfair labor practices. Moreover, those decisions did not allow the employer to prove that the discipline issued was motivated solely by the abusive form or manner of the employee’s activity, or that the employer would have issued the same discipline even if the employee’s abusive outburst had not occurred during Section 7 activity.
Noting that the Obama Board decisions led to inconsistent results that often saw employees being reinstated despite engaging in deeply offensive conduct, the Board in General Motors concluded that all future cases involving discipline of an employee for abusive behavior would be analyzed under a pre-Obama era standard long used by the Board with court approval – the Wright Line standard. Under the Wright Line standard, there first must be proof that the disciplined employee engaged in Section 7 activity, the employer knew of that activity, and the employer had animus against that activity proven through sufficient evidence to establish a causal connection between the Section 7 activity and the discipline. If that initial case is established, the burden shifts to the employer to prove that it would have taken the same action even in the absence of the employee’s Section 7 activity.
In reaching this standard, the Board reasoned that the Obama Board decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination laws. Indeed, NLRB Chairman Ring stated “this is a long-overdue change in the NLRB’s approach to profanity-laced tirades… 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.”
If you have any questions about this new ruling, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
The NLRB’s July 21, 2020 decision reversing the Obama-era standards came in General Motors LLC, which arose from the suspensions of a GM employee, Charles Robinson, who served as union committeeperson at a GM automotive assembly facility. Robinson was suspended three times for three different abusive exchanges. Robinson first had a heated exchange with a manager regarding an overtime coverage issue. During the exchange, Robinson repeatedly used the “f” word with the manager, including telling the manager to “shove it up his f$%! ass.” Robinson received a 3-day suspension. A few days later, Robinson, while attending a meeting about subcontracting with union representatives and management, mockingly acted as a caricature of a slave while referring to a member of management as “Master.” Robinson was suspended for 2 weeks for this conduct. Months later Robinson attended a manpower meeting with managers in which he threatened to “mess up” a manager and then began playing loud music on his phone that contained profane, racially charged, and sexually offensive lyrics. Robinson was suspended for 30 days for this incident. Under Obama-era Board decisions, whether the suspensions were lawful required consideration of several factors, including the place of the discussions, the subject matter of the discussions, the nature of the employee’s outbursts and whether the outbursts were provoked by the employer’s unfair labor practices. Moreover, those decisions did not allow the employer to prove that the discipline issued was motivated solely by the abusive form or manner of the employee’s activity, or that the employer would have issued the same discipline even if the employee’s abusive outburst had not occurred during Section 7 activity.
Noting that the Obama Board decisions led to inconsistent results that often saw employees being reinstated despite engaging in deeply offensive conduct, the Board in General Motors concluded that all future cases involving discipline of an employee for abusive behavior would be analyzed under a pre-Obama era standard long used by the Board with court approval – the Wright Line standard. Under the Wright Line standard, there first must be proof that the disciplined employee engaged in Section 7 activity, the employer knew of that activity, and the employer had animus against that activity proven through sufficient evidence to establish a causal connection between the Section 7 activity and the discipline. If that initial case is established, the burden shifts to the employer to prove that it would have taken the same action even in the absence of the employee’s Section 7 activity.
In reaching this standard, the Board reasoned that the Obama Board decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination laws. Indeed, NLRB Chairman Ring stated “this is a long-overdue change in the NLRB’s approach to profanity-laced tirades… 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.”
If you have any questions about this new ruling, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
