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NLRB’s GM Ruling Gives Employers More Slack to Punish Speech (1)

July 21, 2020, 6:24 PMUpdated: July 21, 2020, 10:29 PM

Ruling in a case involving General Motors LLC, the National Labor Relations Board has given private-sector employers more leeway to dole out discipline or fire workers for racist, sexist, and other profane speech or conduct in the context of workplace activism and union-related activity.

The Tuesday decision reinstates a 40-year-old test that had been supplanted by a series of setting-specific rulings that previously had applied to conduct or speech during encounters with management, on picket lines, and on social media.

The test, known as the Wright Line standard, requires proof that the worker’s protected union activity was a motivating factor in their discipline, then shifts the burden to the employer to demonstrate they would have taken the same action in the absence of that activity.

It replaces previous tests that would take into account factors such as whether an outburst of profanity was provoked by the employer’s unfair labor practices, and another test specific to strike settings that permitted some forms of profanity because of the heated nature of a picket line.

For too long, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today,” NLRB Chairman John Ring said in a statement Tuesday. “Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

Workers have a federal right to join unions if they choose, and it’s generally illegal for businesses to interfere with or retaliate against union and organizing activity, like joining a strike or urging co-workers to unionize. Employers, on the other hand, have a right and legal obligation to prevent discrimination and harassment in their workplace.

The ruling by the all-male, all-Republican three-member panel takes on particular significance and relevance in light of the ongoing national conversation about racism and sexism spurred by the #MeToo and the Black Lives Matter protest movements. In the past week, Cisco Systems Inc. fired several workers for alleged racist comments during an all-hands meeting on racism in America, and television host and multimedia entrepreneur Nick Cannon was fired by ViacomCBS for making anti-Semitic comments on his podcast.

Employers, lawyers, and the Equal Employment Opportunity Commission have all pushed the NLRB to clarify this area of law and create more leeway for businesses to discipline, while some union advocates—including the preceding NLRB Chairman Mark Pearce, who is Black—have accused its current leadership of seizing on the inflammatory nature of racist speech to water down worker protections.

Update or Overreach?

The ruling in the case involves a Black former GM employee named Charles Robinson who challenged his discipline. The company said it suspended Robinson three times for “separate incidents in which he engaged in profane or racially offensive conduct towards management or at bargaining meetings,” according to the Board’s opinion.

Robinson in one incident used an expletive while speaking to a manager about cross-training. And, on another occasion, “Robinson lowered his voice and mockingly acted a caricature of a slave,” pointing to a manager and asking whether the man preferred if he talked that way, according to the ruling.

“In my view, he was disciplined simply for injecting race into the scenario,” Pearce told Bloomberg Law in a Tuesday interview. The board’s reversion to the Wright Line rule, and its decision to apply it to the workplace, social media and in strike setting goes to far in allowing employers to discipline profane or strong language, he said.

“This is a classic example of throwing out the baby with the bathwater,” Pearce said. “In the wake of the protests of George Floyd’s killing, the Board is now instilling an attitude that if you want to keep your job you better be subservient, because you could lose your job if you engage in vocal protests of abysmal working conditions.”

Jerry Hunter, a former general counsel of the NLRB and a former Equal Employment Opportunity Commission trial attorney disagreed. He said the board made an appropriate ruling in reviving the Wright Line test, and that other standards have allowed for egregious results.

“I do think that test makes a whole lot of sense, and it’s better to use that one rather than having multiple standards for different circumstances,” Hunter said.

Keith White and Thomas Payne of Barnes & Thornburg LLP represent GM. They declined to immediately comment on the ruling.

The case is General Motors LLC, N.L.R.B., No. 14-CA-197985, 7/21/20.

(Updates with facts of the case and commentary.)

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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