'But Words Will Never Harm Us? The NLRB Restores Precedent Protecting Abusive Workplace Speech By Employees While They Are Engaged In Protected Concerted And Union Activities

• Jurisdiction: United States,Federal
• Law Firm: Sheppard Mullin Richter & Hampton
• Subject Matter: Employment and HR, Health & Safety, Employee Rights/ Labour Relations
• Author: Mr John S. Bolesta, Keahn Morris, James Hays and Emma Husseman
• Published date: 24 May 2023

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In a decision that had been anticipated, the National Labor Relations Board ("NLRB" or "Board") abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have engaged in abusive or inappropriate conduct. Robbed of the ability to simply demonstrate any such discipline was not in retaliation for protected conduct. Employers will once again be called upon to grapple with a list of indefinite factors that has oftentimes rendered similar outrageous workplace conduct immune from discipline.

The GM Decision

As we previously covered, the "Board issued a decision in General Motors, LLC (GM), 369 NLRB No. 127 (2020), holding that certain abusive or inappropriate workplace speech by employees engaged in concerted or union activity ("PCA") was not protected by Section 7 of the National Labor Relations Act ("NLRA" or "Act"). See Sticks and Stones...The NLRB Rethinks Its Position on Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities. The decision in GM reversed 40 years of Board precedent and emphasized an employer's motive for taking adverse action, giving employers the ability to discipline workers for engaging in abusive or inappropriate conduct provided the discipline was shown not be in retaliation for protected conduct. The Board in GM said it would now apply its well-worn test, first set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), to cases involving employees who were disciplined for making PCA-related abusive statements. In so doing, the GM Board overruled three separate tests previously used to determine whether workplace speech constituted PCA: (1) the four-factor test set forth in Atlantic Steel, 245 NLRB 814 (1979), which governed employees' conduct towards management in the workplace by considering (a) the place of the discussion, (b) the subject matter of the discussion, (c) the nature of the employee's outburst, and (d) whether the outburst was, in any way, provoked by an employer's unfair labor practice; (2) the totality-of-the-circumstances test, which governed social-media posts and most cases involving conversations among employees in the workplace, announced in Desert Springs Hospital Medical Center, 363 NLRB 1824, 1839 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB No. 59...