NLRB Clarifies Discipline Standard for Offensive Outbursts During the Course of a Protected Activity

The National Labor Relations Board (NLRB) recently loosened protections for employees under Section 7 of the National Labor Relations Act (NLRA), granting employers more authority to discipline employees for abusive or offensive outbursts while engaging in a protected activity under the NLRA. The NLRB’s decision in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020) provided a clear and uniform test to be used when an employer disciplines an employee for abusive or offensive outbursts occurring during the course of a protected activity.


Section 7 of the NLRA protects the rights of employees to organize collectively, as well as engage in other activities for the purpose of collective bargaining or mutual aid or protection. In practice, the exercise of such right can lead to hostile workplace interactions which may lead to abusive or offensive outbursts directed at both management and other employees. Under previous rulings of the NLRB, employees may be protected if the subject matter or motivation of their abusive or offensive outbursts is related to the activities protected under Section 7. This was the case in Pier Sixty, LLC, 362 NLRB 505 (2015), enforced, 855 F.3d 115 (2d Cir. 2017), where an employee posted to social media a profane post against his manager and his manager’s mother and family. While the post used profanities to insult the manager and threaten his mother and family, the message ended with an endorsement of the union in an upcoming vote. Because of this, it was determined that the protections of Section 7 still applied to this outburst, regardless of its profane nature.


Because of this strong protection, a Section 7 outburst could come into conflict with the protections of Title VII of the Civil Rights Act of 1964 (Title VII), which protects employees from discrimination and harassment on the basis of race, sex, religion, and other protected traits. This conflict sometimes resulted in the hesitancy of the NLRB to discipline an employer whose outburst violated Title VII due to its relation to a Section 7 activity. In Cooper Tire, 363 NLRB No. 194 (2016), an employee made racially charged statements to African American replacement workers while picketing at the entrance to his workplace. The NLRB reaffirmed that while the statements were recorded on video, the protections of the NLRA protect a picketer’s “use of even the most vile language and/or gestures . . . so long as those actions do not constitute a threat.” Consequently, despite the existence of an anti-discrimination policy allowing for the termination for the remarks made, the employee was deemed protected by the NLRA and reinstated with backpay.


Historically, the NLRB had utilized a myriad of disparate tests to analyze these fact specific inquiries on a case-by-case basis. This lack of a singular framework for the analysis of Section 7 outbursts led to unpredictability in the resolution of these matters. After the concerning outcomes in cases like Pier Sixty, LLC and Cooper Tire, the NLRB invited comment on these decisions in late 2019. The General Motors decision appears as a direct result of this process.


The NLRB’s decision in General Motors, now establishes a standard test to restore uniformity. The Board turned to the test articulated in their 1980 Wright Line decision. Under the Wright Line test, the NLRB General Counsel must demonstrate that: “(1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity.” If this initial showing is made, the burden will shift to the employer to prove it would have taken the same action even in the absence of the protected Section 7 activity.


When faced with an abusive or offensive outburst with ties to Section 7 protections, employers may now demonstrate that the discipline was independent of the Section 7 activity. Because of this, consideration of Section 7 protections should be given prior to any termination due to an abusive or offensive outburst.


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