Alerts and Updates

Is an Employee Protected from Discipline for Hurling Profane and Racist Insults During Collective Bargaining? The NLRB Provides Clarity

August 3, 2020

Under the Wright Line standard, it is unlawful for employers to target employees who engage in protected bargaining activity and subject them to discipline that would not have occurred but for that protected activity. 

In many National Labor Relations Board (NLRB) cases, particularly in recent years, the NLRB held that employers violated the National Labor Relations Act (NLRA) by firing employees for profane and racist outbursts made during collective bargaining activities. Some of these decisions were shocking to employers, given that most would certainly consider the at-issue conduct fireable offenses in almost any other setting. To make matters worse, the NLRB was applying three different standards to get to these results, depending on whether the offensive conduct occurred in social media, on a picket line or whether it involved direct discussions with management. Further complicating matters, in some cases the NLRB’s standard left employers having to choose between enforcement of nondiscrimination policies and the NLRA when the abusive conduction involved racist, sexist or other discriminatory remarks or conduct.

In the NLRB’s new decision in General Motors (14-CA-197985), issued on July 21, 2020, the Board addressed the above issues head on. In doing so, it set aside the multiple standards in favor of the familiar Wright Line one that expressly considers whether an employer would take the challenged action irrespective of it having occurred in the context of protected activity. In its decision, the Board addressed three illustrative cases in explaining why these multiple standards were unworkable.

  • In Plaza Auto Center, Inc. (2014), the employee advocated for his employer to provide rest breaks and to change the employer’s commission policy. In a meeting between the employee and the company owner to address the employee’s concerns, the employee called the owner a “f---ing crook” and an “a--hole,” and threatened the owner that if he fired the employee, the owner would regret it.
  • In Pier Sixty, LLC (2015), the employee and some of his co-workers presented the employer with a petition to unionize claiming management treated employees disrespectfully. Two days before the union election, the employee posted on Facebook that his manager was “a NASTY MOTHER F---ER” and wrote, “F--- his mother and his entire f---ing family!!!! What a LOSER!!!! Vote YES for the UNION !!!!!!!”
  • In Cooper Tire & Rubber Co. (2016), the employee participated in a picket line at the employer’s facility during negotiations concerning a collective bargaining agreement. When a shift of mostly African American replacement workers crossed the picket line, the employee shouted out offensive racist stereotypes.

The NLRB decided that all three of these tirades were actually protected under Section 7 of the NLRA. Section 7 provides that employees have the right to self-organize, form or assist labor organizations, bargain collectively and engage in other “concerted activities for the purpose of collective bargaining.” To provide employees with leeway to exercise their protected rights under Section 7, the NLRA prohibits employers from retaliating against, interfering with, restraining or coercing employees in the exercise of their Section 7 rights. As such, the NLRB has historically given employees more leeway with respect to profane commentary when it is interwoven with protected conduct. In recent years, the NLRB has seemingly struck a balance in favor of employee rights under the NLRA over the obligations of employers to take disciplinary action to protect the rights of other employees to be free of offensive discriminatory commentary under Title VII and other anti-discrimination statutes. 

The above three NLRB decisions, as well as many others, shocked employers who felt that they were stuck between a rock and a hard place when dealing with abusive employees. As noted above, also troublesome was the fact that the NLRB applied different standards in each of the three cases: one standard for workplace discussions with management, another standard for social media posts and co-worker discussions and yet another standard for picket line conduct. These varying, context-specific standards resulted in unpredictable and arbitrary results, making it difficult for employers to address abusive and discriminatory conduct by their employees when the conduct happened to be associated with collective bargaining activity.

In General Motors, the NLRB Adopts One Consistent Standard

In General Motors, the employer allegedly violated the NLRA by disciplining an employee for an expletive-laden outburst to a manager during collective bargaining activities. In that case, the employee was a union committee member at General Motors’ assembly facility in Kansas City, Kansas. General Motors suspended the employee for three days after he yelled at his manager that he did not “give a f--- about [the manager’s] cross-training” and could “shove it up [his] f---in’ a--.” In considering whether General Motor’s suspension of the employee violated the NLRA, the NLRB’s administrative law judge (ALJ) used the four-factor standard applicable to discussions with management set forth in Atlantic Steel Co., 245 NLRB 814, 816 (1979), that was more recently relied on in Plaza Auto Center, Inc. The factors included: “(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.” In applying the standard, the ALJ concluded that General Motors violated the NLRA by suspending the employee.

On appeal, the NLRB reversed the decision of the ALJ and replaced all of the context-specific standards with one consistent standard: the well-known Wright Line standard. Under the Wright Line standard, it is unlawful for employers to target employees who engage in protected bargaining activity and subject them to discipline that would not have occurred but for that protected activity. Under the standard, board prosecutors bringing unfair firing cases must first prove the employee’s protected activity factored into the company’s decision to discipline the employee. Then, the burden shifts to the employer to prove it would have fired the employee regardless of whether the employee engaged in protected activity. The NLRB concluded that this consistent standard “promises more reliable, less arbitrary, and more equitable treatment of abusive conduct.”

NCRNC, LLC Illustrates Significant Legal Risks Remain

By applying one consistent standard, employers are better equipped to discipline employees who engage in abusive conduct during collective bargaining activities. However, disciplining these employees still carries significant legal risks, including NLRB charges seeking reinstatement, back pay and, in some circumstances, immediate injunctive relief.

For example, on July 27, 2020, the U.S. District Court for the Northern District of New York in Murphy v. NCRNC LLC, granted the Board’s request for a 10(j) injunction ruling that an employer must reinstate an employee who was active in ongoing union organizing activities. The employee allegedly screamed profanities and damaged property during a meeting with his manager in response to being informed that his solicitation of authorization cards was unlawful because he was a supervisor (which was disputed). According to the manager, the employee reacted by throwing his badge at the manager, saying “I don’t need this f---ing job anyway,” and slammed the door of the meeting room so hard that it put a hole in the wall. The manager suspended the employee for his conduct and he was ultimately discharged. The regional director moved for an injunction before the case was presented for a hearing before an ALJ.

The court ruled that the employee must be reinstated pending the Board’s decision because, even assuming the manager’s story was true, the employee’s conduct was not serious enough to forfeit his rights under Section 7 of the NLRA. While the court did at least, in part, erroneously rely on the Atlantic Steel test, despite its being overruled in General Motors just days before this decision issued, it may have reached the same result applying the reasonable cause standard applicable to 10(j) proceedings since it typically will not make credibility determinations or weigh the evidence and will often defer to the NLRB’s findings unless those findings are “fatally flawed.” In such cases, if the court believes the relief is “just and proper” to prevent irreparable harm to national labor policy, such as an adverse impact on a union organizing drive, the court will issue an injunction before the issue even gets decided at the NLRB.

This case illustrates the continued high stakes employers face in disciplining employees who engage in abusive conduct during collective bargaining activities even with the more favorable Wright Line standard now in place. Due to those ongoing risks, employers should carefully evaluate—with the assistance of counsel—proposed discipline of employees who actively engage in union activities.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Christopher D. Kanne, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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