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NLRB Adopts Uniform Standard for Addressing Offensive Outbursts in the Course of Protected Activity

The National Labor Relations Board ("NLRB") has frequently been asked to determine whether employers have unlawfully discharged or otherwise disciplined employees who had engaged in abusive conduct in connection with activities protected by Section 7 of the National Labor Relations Act. In making these determinations, the NLRB has adopted several setting-specific standards:

  • For outbursts to management in the workplace, the NLRB has applied the four-factor Atlantic Steel test, under which it considers (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.

  • For social media posts and most cases involving conversations among employees in the workplace, the NLRB has examined the totality of the circumstances.

  • And for picket-line conduct, the NLRB applied the Clear Pine Mouldings standard, which asks whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the abusive conduct.

In its recent decision in General Motors, LLC, 14-CA-197985, 369 NLRB No. 127 (2020), the NLRB modified the standard for making these determinations, and adopted the familiar Wright Line standard for all situations involving abusive conduct in connection with protected activity.

Under the Wright Line standard, the General Counsel must first make an initial showing that (1) the employee engaged in Section 7 activity; (2) the employer knew of that activity; and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. If the General Counsel makes this 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.

Going forward, the Wright Line burden-shifting framework will be the appropriate standard for all cases where the General Counsel alleges that discipline was motivated by Section 7 activity and the employer asserts that it was motivated by abusive conduct, regardless of the setting involved. The Wright Line standard will provide “more reliable, less arbitrary, and more equitable treatment of abusive conduct than the [NLRB’s] experience under Atlantic Steel, the ‘totality of the circumstances’ standard, and Clear Pine Mouldings.”

The full decision can be found here.

Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.

This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.

Copyright © 2020 Stefanik Iosue & Associates, LLC. All rights reserved.



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