NLRB’s General Motors Decision: Board Rolls Out Redesigned Employee Discipline Standard

By: Attorney Bryan T. Symes – Weld Riley, S.C.

On July 21, 2020, the National Labor Relations Board rolled out a completely redesigned employee discipline standard.  The Board, through General Motors, LLC, 369 NLRB 127 (2020)[available here: https://secureservercdn.net/104.238.71.109/gjq.9a0.myftpupload.com/wp-content/uploads/2020/07/General-Motors-NLRB.pdf ], examined the scope of employer discipline rights in the context of delicate situations in which employee protected activity accompanies contemporaneous abusive conduct.   The Board cited the following examples of past scenarios involving this collision of protected activity and abusive employee conduct: (1) an employee “unleashed a barrage of profane ad hominem attacks against the owner of an employer during a meeting in which the employee also raised concerted complaints about compensation;” (2) an employee “posted on social media a profane ad hominem attack against a manager, where the posting also promoted voting for union representation;” and (3) an employee “shouted racial slurs while picketing.”

In General Motors, LLC, an employee engaged in several exchanges with his managers, during which he shouted profanities [e.g., the employee said he did not “give a #$&@ about your cross-training,” and “we’re not going to do any #$%&@# cross-training if you’re going to be acting that way.”] and engaged in other colorful, less-than-respectful behavior directed at his supervisors.   Underlying this employee’s abusive behavior, however, are complaints about working conditions at General Motors.   Through General Motors, LLC, the Board addressed how employers and employees alike should evaluate employee discipline in these hybrid settings.

In the Board’s view, under the prior, “setting-specific” analysis involving employee discipline in these hybrid situations, the Board has not taken into account employers’ arguments that the discipline at issue was motivated solely by the abusive form or manner of the protected activity or that the employer would have issued the same discipline for the abusive conduct even in the absence of protected activity.  Significantly, the Board also stated, “[i]n our view, abusive conduct that occurs in the context of [protected] activity is not analytically inseparable from the [protected] activity itself.”  For these reasons, to engender more “predictable, equitable results” in this hybrid setting, the Board concluded that it should apply its long-standing Wright Line test.

Under Wright Line, the analysis looks similar to the general “retaliation” test with which employers are familiar in connection with federal and state anti-discrimination laws: (1) the employee must have engaged in protected activity [e.g., complained about workplace wages or working conditions]; (2) the employer must have known about the protected activity; and (3) the employer must have had animus/hostility against the protected activity, all of which must be proven with evidence sufficient to establish a causal connection between the discipline imposed and the underlying protected activity.  If this initial, three-part “test” is satisfied, the employer is liable unless it can show that it would have taken the same disciplinary action even in the absence of the employee’s protected activity [also taking into account any evidence of pretext].  

Here, the Board sent the case back to the administrative law judge to apply the Wright Line proof framework to the facts of the case, described above.   Undoubtedly, the final outcome in General Motors, LLC is worth watching closely, but the management community is sure to get more mileage out of the Board’s redesigned employee discipline standard.