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NLRB Nixes Short-Lived One-Size-Fits-All Approach to Abusive Conduct Cases

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Employers (hopefully) are aware that their employees are afforded certain rights under the National Labor Relations Act (the “NLRA” or “Act”), including the right to self-organization, to bargain collectively, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. But what happens when an employee engages in abusive conduct, such as using a racial slur or profanity, while exercising such rights? Is the employee still protected under the Act or can the employer terminate or discipline the employee for the inappropriate conduct?

For the better part of the last three years, the answer was fairly straightforward, as the National Labor Relations Board (the “Board”) applied the Wright Line standard to abusive conduct cases. Under that simple, one-size-fits-all standard, employers generally were allowed to terminate or discipline an employee who engaged in abusive conduct in connection with protected activity, provided the employer could establish that it would have treated the employee the same way regardless of whether the employee was engaged in protected activity. Under that approach, employer motive, not the nature or context of the employee’s conduct, guided the Board’s analysis.

However, in a decision issued May 1, 2023, the Board moved away from its uniform approach and returned to its “various setting-specific standards” for abusive conduct cases. Those standards include:(i) the Board’s Atlantic Steel test, which governs employee conduct directed towards management in the workplace; (ii) the Board’s totality of circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (iii) the Board’s Clear Pine Moldings standard, which governs picket-line conduct. Under those standards, the Board looks to certain factors (which differ based on the context in which the alleged abusive conduct occurred) to determine whether an employer’s decision to discipline or discharge an employee for abusive conduct violates the Act. The following hypothetical illustrates the increased complexity employers face following the Board’s recent decision.

Suppose a restaurant server engages in a heated discussion with her manager, while confronting the manager about how the restaurant treats its servers. During the exchange, the employee insults the manager. Is it an NLRA violation if the restaurant disciplines or discharges the server for insulting the manager? Under the former Wright Line standard, the answer was fairly simple: Yes, provided the employer could establish that it would have taken the same action regardless of whether the server was engaged in protected activity. But under the Atlantic Steel test, (which applies to employee conduct directed towards management) the answer is: It depends. Specifically, it depends on: (i) where the discussion occurred; (ii) the subject matter of the discussion; (iii) the nature of the employee’s outburst; and (iv) whether the outburst was, in any way, provoked by the employer’s unfair labor practice. Similarly nuanced approaches are also required under the Board’s other context-specific standards. And, the Board’s latest decision specifies that, in making a determination, it is free to take into account possible conflicts with other Federal statutes (such as Title VII), if it were to find that the misconduct otherwise retained the Act’s protection. As a result, employers would be wise to consult with an employment lawyer prior to disciplining or discharging an employee for conduct that occurred while the employee was engaged in NLRA protected activity.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.