Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Jeff Bosley and Tyler Maffia
• Publication year: 2020
• Citation: Vol. 34 No. 6

NLRA CASE NOTES

By Jeff Bosley and Tyler Maffia

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt. com. Tyler Maffia is an associate in the San Francisco office of Davis Wright Tremaine LLP who assists employers in labor and employment law matters. He can be reached at tylermaffia@dwt.com.

WHETHER EMPLOYEES' ABUSIVE CONDUCT LOSES PROTECTION OF THE ACT IS DETERMINED BY A WRIGHT LINE ANALYSIS

General Motors, LLC, 369 NLRB No. 127 (2020)

In a unanimous decision, the National Labor Relations Board (NLRB or Board) announced that it will apply its Wright Line standard to evaluate whether abusive employee conduct that occurs in the context of § 7 activity loses protection of the National Labor Relations Act (Act). In so doing, the Board overruled its context-specific prior precedent set in Atlantic Steel¹ (workplace conversations), Pier Sixty, LLC² (social media), Clear Pine Mouldings³ (picket line misconduct), and other cases.

The employee disciplined had been employed with the employer since 2012, and his entire job was representing bargaining unit members. The employee was disciplined for three incidents, each of which occurred during otherwise-protected activity: (1) yelling at a manager about overtime coverage on April 11, 2017, including that the employee "did not give a f--- about your cross-training," and that the manager could "shove it up [his] f-----' ass;" (2) acting as a caricature of a slave during a meeting with management regarding subcontracting on April 25, 2017; and (3) playing music with profane, racially charged, and sexually offensive lyrics during a meeting with managers on October 6, 2017. The employee was suspended after each incident.

At the time this case was decided, the Board's longstanding precedent for evaluating whether abusive conduct during otherwise-protected workplace conversations with management was set forth in Atlantic Steel Co. Under Atlantic Steel, the Board considered four factors to determine whether a violation of the Act's protections occurred: (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 activity or conversations among employees, the Board had examined the totality of circumstances. For activity on a picket-line, the Board had considered whether non-strikers reasonably would have been concerned or intimidated by the abusive conduct.

In deciding the matter, the Administrative Law Judge (ALJ) applied the Atlantic Steel test to find that the employee's abusive conduct caused him to lose the protection of the Act as to the April 25 and October 6 incidents...