The National Labor Relations Board (NLRB) has adopted a new standard for determining whether employees are protected from adverse action after making abusive statements in the course of activity that is otherwise protected under the National Labor Relations Act (NLRA).
Background:
Under Section 7 of the NLRA, employees have, among other things, the right to join a union and to act together to improve wages and working conditions and to discuss wages, benefits, and other terms and conditions of employment, with or without a union.
Over the years, the NLRB has had several cases in which it has been asked to determine whether employees have been unlawfully discharged or disciplined for engaging in abusive conduct in connection with activity protected by Section 7. For instance, one case involved an employee who unleashed a barrage of profane attacks against their employer during a meeting in which the employee also raised concerted complaints about compensation.
In the past, the NLRB has presumed that discipline based on abusive conduct in the course of Section 7 activity violates the NLRA unless the NLRB determines, under one of its setting-specific standards, that the abusive conduct lost the employee the protection of the law. For example, for outbursts to management in the workplace, the NLRB applied a four-factor test under which it considers "(1) the place of the discussion; (2) the subject matter of the discussion; (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." The NLRB used different standards for social-media posts and conversations among employees in the workplace, as well as for picket-line conduct.
New Standard:
In a recent decision (General Motors LLC, 14-CA-197985 369 NLRB No. 127), the NLRB said all cases involving offensive or abusive conduct in the course of otherwise-protected activity will now be decided under a single standard, known as the Wright Line standard. Under this standard, the NLRB's General Counsel must first prove that:
- The employee engaged in Section 7 activity;
- The employer knew of that activity; and
- The employer had animus against the Section 7 activity, which must be shown with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity.
If that initial burden is met, the burden then shifts to the employer to show that it would have taken the same action even in the absence of the protected activity, such as by showing consistent discipline of other employees who engaged in similar abusive conduct. However, the employer generally won't avoid liability if the evidence as a whole "establishes that the reasons given for the [employer's] action are pretextual—that is, either false or not in fact relied upon."
Compliance Recommendations:
The NLRB's decision provides a single standard for determining whether an employee's conduct is protected in these situations. Before taking adverse action against an employee who engages in abusive conduct while exercising Section 7 rights, employers should consult legal counsel and be able to show that they would have taken the same action even in the absence of the protected activity. Please contact your dedicated service professional with any questions.