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The National Labor Relations Board (NLRB) announced today a decision once again restoring a bit of common sense at the agency, this time by reversing the Obama-era Board’s policy of protecting abusive behavior such as racist and profane remarks in certain situations. Today’s decision in General Motors LLC eliminates a clunky, situation-specific approach to evaluating whether such behavior is protected by Section 7 of the National Labor Relations Act (NLRA) when it comes to employer discipline. Instead, the decision restores the Board’s standard for evaluating abusive conduct with its so-called Wright Line test from 1980.
So-called Section 7 rights have long been a complicated, if not contentious, issue that over time has caused the NLRB to engage in intellectual gymnastics—sometimes with results straining credulity, to be polite. This has been especially true when abusive behavior is involved.
In general, the NLRA protects “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” What those words mean, however, has become the basis for years of litigation to determine what kind of “activities” enjoy protection if they otherwise cross the proverbial line.
During the Obama administration, the NLRB took this concept to such extremes that it led to a theater of the absurd with the Board nitpicking employers’ handbooks and protecting bad behavior with differing standards depending on the situation. It also adopted a forgiving interpretation of a 1979 case known as Atlantic Steel, which overturned the dismissal of an employee who called his supervisor a “lying s.o.b.” while discussing a grievance. In that case the Board established a four-part test to evaluate “(1) the place of the discussion; (2) the subject matter … (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice” when determining Section 7 protection.
Applying the Atlantic Steel test, the Obama-era Board went on to issue decisions in several cases, including Plaza Auto Center, Pier Sixty, and Cooper Tire, which collectively held that racist remarks and extreme profanity were protected under Section 7 in some situations.
Early in his tenure in late 2017, the NLRB’s current General Counsel issued a guidance memo signaling his intent to revisit–and presumably curtail–the extent of Section 7 protections, among several other topics. On September 5, 2019, using General Motors LLC as the vehicle, the Board issued an invitation for briefs from the public addressing its standard for Section 7 protections and whether the Board should change it, especially in light of other laws.
In its invitation, the Board noted that its previous “treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges,” and while “the courts of appeals have not repudiated the Board’s tests in this area, the vehemence of judicial criticism must give us pause.”
In its decision today, the NLRB announced a return to its Wright Line precedent under which the General Counsel must at the outset show that the Section 7 activity was a motivating factor for disciplinary action, and, if he does, the burden shifts to the employer to prove it would have taken the same measures even in the absence of Section 7 activity. As a result, employers will be able to dismiss individuals who engage in abusive behavior even if they are involved in union-related or other “concerted activities” in most situations. That seems about right.