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A National Labor Relations Board ruling that abusive or inappropriate workplace speech by employees engaged in “protected concerted” or union activity is not protected under the National Labor Relations Act eliminates confusion and harmonizes federal discrimination law, employer lawyers say.
The long-awaited ruling in General Motors LLC and Charles Robinson — issued July 21— concerns Mr. Robinson’s suspension after he directed a profane outburst at a supervisor during a 2017 meeting in which Mr. Robinson was engaged in union activity.
Mr. Robinson has represented bargaining unit members as his full-time job at GM’s automotive assembly facility in Kansas City, Kansas, since 2012, while remaining a GM employee. He was suspended three times in 2017 following separate incidents in which he engaged in “profane or racially offensive conduct” towards management or at bargaining meetings in the course of union activity, the ruling said.
In one incident, for instance, he told a manager he did not “give a (expletive) about your cross-training,” and in another “mockingly acted a caricature of a slave.”
Experts say the ruling clarifies the standard under which employers should operate in dealing with comparable situations and reconciles the NLRB’s position with Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission, among other federal discrimination laws.
The NLRB’s ruling said the board has used three different standards, which are named after previous rulings: the Wright Line standard, typically used to determine whether discipline was an unlawful response to protected conduct; the Atlantic Steel test, which involves whether an outburst to management in the workplace was provoked by an employer’s unfair labor practice; and the Clear Pine Mouldings standard, which concerns picket-line conduct.
The three standards have “failed to yield predictable, equitable results,” the board said in its ruling, which states that going forward cases should be considered under the Wright Line standard.
Under the Wright Line standard, to act against an employer, the general counsel must make an initial showing that the employee engaged in protected activity that the employer knew about and that the employer had animus against the protected activity, and that there was sufficient evidence to prove there was a causal connection between the two.
“If the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity,” the NLRA provision that protects employees’ concerted activity.
Tom H. Luetkemeyer, a partner with Hinshaw & Culbertson LLP in Chicago, said the ruling means that employers should not tolerate a hostile work environment under federal law, including Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act. “It allows employers to police their workforce,” he said.
Attorneys who represent employers praised the ruling.
Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia, said it “aligns with the guidance that the EEOC has been providing (employers) for decades, namely you don’t have to tolerate discriminatory behavior regardless of the reason.”
The ruling “makes sense because the EEOC has a very similar burden-shifting test when assessing claims of discrimination under Title VII,” said Jason Kim, a partner with Neal Gerber Eisenberg LLP in Chicago.
The ruling is “well overdue,” said New York-based Eve I. Klein, who chairs Duane Morris LLP’s employment, labor, benefits and immigration practice group. She said “it makes a lot of sense” to apply the well-known Wright Line standard.
Seth T. Ford, a partner with Troutman Pepper Hamilton Sanders LLP in Atlanta, said, “I think most parties really like a uniform approach that establishes predictability, and this approach allows employers to hold employees responsible for their misconduct so long as they do so fairly and uniformly.”
“This really is a balancing between … unions’ right to prevent retaliatory decisions against an increased awareness and sensitivity to the impropriety of abusive and hostile conduct, particularly with respect to conduct or remarks that are discriminatory or harassing in nature,” he said.
However, New York-based solo practitioner Joshua Parkhurst, who represents workers, said the ruling follows a trend under the current administration’s board that turns protected activity “into what is essentially just a discrimination case.”
The NLRA “gives employees an affirmative right to engage in concerted, protected activity,” he said. The board is applying “a fig leaf to change the NLRA,” he said.