What The F#*%! NLRB Addresses Offensive Outbursts in Workplace

In a ruling this summer, the National Labor Relations Board (NLRB) modified the standard for determining whether employees have been lawfully disciplined or discharged after making “abusive” or “offensive” statements in the course of activity that is otherwise protected under the National Labor Relations Act. The language at issue include profane, racist and sexually unacceptable remarks.

The decision came in a case brought against General Motors, and the Board held that cases involving offensive or abusive conduct will now be decided under the Wright Line standard, used for 40 years previously by the NLRB in “mixed motive” cases where, if the NLRB proves that the employee’s protected activity was a motivating factor in discipline or discharge, the employer can then rebut by proving that it would have taken the same action even in the absence of the protected activity. One method of demonstrating this is showing consistent discipline of others who did not engage in the protected aspect of the activity but engaged in similar non-protected misconduct.

The new test replaces other decisions that came after Wright Line and also addressed this situation (Atlantic Steel, which addressed encounters with management, and Clear Pine Mouldings, which addressed offensive statements and conduct on a picket line). These older tests accounted for impulsive behavior when engaging in protected activity, looked at whether the employer’s unfair labor practices had provoked the conduct, and often resulted in workers’ reinstatement for the offensive language or conduct. The federal EEOC had previously commented on the then-pending General Motors case, noting that the old tests required the NLRB to protect worker’s offensive speech to an extent that could hamper employers’ ability to tamp down on potential harassment under federal anti-discrimination laws.

The GM ruling, which was decided by a unanimous all male GOP NLRB, is significant in the #MeToo and BLM protest era, and some including former NLRB Chair Mark Pearce, responded that the NLRB is trying to seize on inflammatory language to water down worker protections when striking or protesting workplace practices. The GM case facts involved a black employee who was suspended for incidents where he “engaged in profane or racially offensive conduct toward management or at bargaining meetings.”