The “days of boys will be boys” must end, said Circuit Judge Brown in Consolidated Communications, Inc. v. NLRB, 837 F.3d 1, 18 (D.C. Cir. 2016), a case involving strike misconduct. Heeding her directive, on July 21, 2020, the three grown “boys” at the NLRB decided that profane outbursts occurring during otherwise protected activities could be cause for termination. General Motors LLC, 369 NLRB No. 127 (2020). In the past, the NLRB has allowed some leeway for impulsive behavior of an employee when such misconduct is part of the “res gestae” of an employee’s protected activity. See, e.g., KHRG Employer LLC, 366 NLRB No. 22 (2018) (setting forth relevant test). But no more. Now, special rules will not apply to employees who violate an employer’s otherwise lawful rule mandating civility in the workplace just because the violation was part of the res gestae of a protected activity. This is good news for front line supervisors and managers who had to endure abusive conduct solely because it occurred during a labor-management meeting or in some other form of protected concerted activity.

In the late 1970s and early 1980s, thwarted by a number of appellate court decisions, the NLRB reformulated its analysis of employee discharges alleged to be unlawful. In Wright-Line, 251 NLRB 1083 (1980), it adopted the shifting burden of proof paradigm in Mt Healy City School Dist.. v. Doyle, 429 U.S. 274 (1977) as the framework for cases alleging an unlawful discharge. At nearly the same time, in Atlantic Steel, 245 NLRB 814 (1979), the NLRB adopted the more lenient analysis to be used in cases where misconduct occurs during labor-management meetings or other protected activity. Still, later, in Clear Pines Molding, 268 NLRB 1044 (1984), it adopted yet a different standard for discipline for conduct occurring on a picket-line.

The results of the various tests and analyses brought uneven results and in an increasingly hostile reception in the Courts of Appeals. (The 2020 General Motors decision demonstrates the unevenness of the results.) After reviewing the actual text of the National Labor Relations Act, the NLRB bowed to the inevitable: it adopted the Wright-Line analysis as the analysis for all discipline alleged to be unlawfully motivated, regardless of whether it occurred on the picket-line, in a labor-management meeting, or during the scope of another protected activity.

Significantly, the NLRB made several subtle changes in its Wright-Line analysis, which may be even more far-reaching than discarding the exceptions to its application. As experienced practitioners understand, there has been some debate as to the traditional Wright-Line analysis. Employer counsel preferred that the General Counsel be required to prove that: (1) the employee engaged in protected conduct; (2) the employer was aware of the employee’s activities; (3) the employer harbored union-animus; and (4) there was a nexus between the animus and the discipline. The General Counsel frequently argued, with some success over the years, that the NLRB could find a generalized union animus was sufficient to support a determination of unlawful discharge. In these cases, the General Counsel pointed to otherwise legal statements in employee handbooks that expressed the employer’s preference for a union-free workplace, or perhaps an overly broad work rule unrelated to the case at bar. In the General Counsel’s view, there was no requirement, that a nexus between the union animus and the discipline be demonstrated.

In General Motors, the NLRB made clear–by stating no less than three times–that to prevail, the General Counsel must demonstrate the employer’s union animus was directed at the specific protected activity of the disciplined employee. The NLRB also reiterated two well-known principles applicable to an employer’s affirmative defense. First, to avail itself of an affirmative defense, the employer must prove that the employee was disciplined under a work rule of general applicability. Second, the work rule must have been consistently enforced.

There is some hope for employers that the General Motors decision is here to stay. The decision in General Motors takes great pains to review the text of the statute and its legislative history. By grounding its decision to the actual text of the statute (rather than policy considerations), the current Board has given courts, such as the D.C. Circuit, a basis for rejecting any effort to revert to a pre-General Motors hodge podge of standards.

Employer Takeaways

General Motors provides a few important takeaways for employers:

  • Employers should take advantage of the lull created by the coronavirus to review and revise work rules and non-harassment policies. This review should be based on the standards in the Boeing decision rather than the prior overly restrictive and now overruled standards.
  • Employers should review past enforcement of their work rules to determine whether they are applied consistently. If enforcement has not been consistent, employers should consider re-issuing their work rules and non-harassment policies and starting fresh. Revising such policies for consistency carries an added bonus, as it will allow employers to implement policies that increase diversity and inclusion.
  • Managers and supervisors can feel empowered to enforce civility and courtesy rules in the workplace in light of General Motors.

For more information, contact your Baker McKenzie attorney.