The NLRB Brings the NLRA Into the Modern Era of Discipline for Abusive Conduct

Employee Relations Law Journal Winter 2020

Michael S. Ferrell, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, authored an article in the Employee Relations Law Journal, titled “The Board Brings the NLRA Into the Modern Era of Discipline for Abusive Conduct, and Union Leaders Lament: 'Guys Like Us, We Had It Made. Those Were the Days.'”

Following is an excerpt (see below to download the full version in PDF format):

The three-member, all Republican, National Labor Relations Board (the “Board”) has issued a unanimous decision in General Motors LLC and Charles Robinson, reversing its longstanding standard for determining when employers violate the National Labor Relations Act (the “Act”) by disciplining employees who, while engaged in activity protected under Section 7 of the Act, use profanity-laced speech, as well as racial, ethnic or sexist slurs, or other abusive conduct toward or about management or other employees.

Going forward, including to any unfair labor practice case currently pending, the Board will apply its familiar burden-shifting standard under Wright Line, pursuant to which a charging party must show through evidence that the employer would not have disciplined the employee but for his or her engaging in the protected activity, and the employer will not violate the Act where it shows the employee would have been disciplined because of the abusive speech or conduct regardless of any involvement in protected activity.

The Board will no longer treat the engagement in the protected activity and the abusive conduct as being analytically inseparable.

Nor will the Board any longer presume in such circumstances the issue of causation between the employee’s discipline and his or her involvement in protected activity.

In so doing, the Board has brought the Act into the modern era so as to be consistent with current workplace standards of decorum and employers’ legal obligations under antidiscrimination laws. To those union leaders and employees who engage in abusive and offensive language or other conduct, similar to that old television dinosaur Archie Bunker, they may well reminisce about the old days when guys like them had it made and they were protected from discipline.