Labor Law -- 2020



General Motors, LLC and Charles Robinson   (NLRB)

When profane outbursts and offensive statements lose the protection of the NLRA

The NAM filed an amicus brief with the National Labor Relations Board (NLRB) urging the Board to reconsider its standards for determining whether an employee's profane outbursts or offensive statements of a racial or sexual nature lose the protection of the National Labor Relations Act (NLRA). The NLRB invited interested amici to file briefs after prior Board decisions in which extremely profane or racially offensive language was judged not to lose the protection of the NLRA were met with frequent criticism. Those decisions were grossly out of touch with the realities of today's workplace and the interests of employers in ensuring workplaces are free from harassment, discrimination, and bullying. In response to the specific questions posed by the Board, the NAM's brief, filed November 12, 2019, argues that (1) there are instances of employee misconduct that are so egregious that they should automatically result in the forfeit of the NLRA's protection; (2) employers are not required to tolerate insubordination, particularly where racially or sexually charged language is used; (3) the "norms" of the workplace cannot be used as an excuse to protect harassment and incivility; (4) the Board should abandon the standard applied in prior cases to the extent it protects sexual or racially offensive language that would otherwise not be tolerated simply because it occurs in the context of picketing; and (5) the Board should afford great weight to civil rights and antidiscrimination laws, and the requirements they place on employers.

On July 21, 2020, the Board issued a decision holding that the Wright Line, 251 NLRB 1083 (1980) standard applies to abusive conduct cases. Under that standard, the NLRB "General Counsel must 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[.]" If the General Counsel meets her burden, "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."


Related Documents:
Board Decision  (July 21, 2020)
NAM brief  (November 12, 2019)