Ira L. Gottlieb
Partner, Bush Gottlieb
Phone: (818) 973-3200
Email: igottlieb@bushgottlieb.com
Rutgers Univ SOL; Camden NJ
"Labor disputes are ordinarily heated affairs, and ... confrontations between management and employees cannot be held to the standards of cool, analytical impartiality characteristic of the debating society." Boaz Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir. 1968).
The National Labor Relations Board is the independent federal administrative agency Congress empowered 85 years ago through the National Labor Relations Act (29 U.S.C. Section 141 et seq.) to "give laborers opportunity to deal on an equality with their employer" (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937)), and to encourage collective bargaining and the full exercise of freedom of association at work. 29 U.S.C. Section 151; American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965). As the Supreme Court observed in Jones & Laughlin, "Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer." American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209 (1921).") (Emphasis added).
The Trump board's recent decision in General Motors LLC and Charles Robinson, 369 NLRB No. 127 (July 21, 2020), is the latest in a parade of decisions and rulemaking intended to impose obstacles in the path of workers exercising their rights to organize and maintain a voice in the workplace, and/or to clear the way for employers to deter and intimidate workers in that exercise.
Facts
In General Motors, an African-American union committeeperson named Charles Robinson received a series of suspensions imposed by his employer, GM, for use of abusive language in three different meetings: in the first, saying a manager could "shove [a training requirement] up his fuckin' ass"; in the second, using sarcasm (including adopting a mock servile voice, calling a manager "Master Anthony"); and in the third, telling a manager he would "mess him up" and playing loud rap music with profane lyrics during a meeting. None of the exchanges occurred within earshot of customers or clients, and all occurred in the context of Robinson's protected union activity as an employee representative in the presence of other committeepersons and managers.
The administrative law Judge decided, applying the board's established four-part Atlantic Steel (245 NLRB 814 (1979)) test applicable to verbal encounters between management and employees, that Robinson's conduct in the first meeting was protected by the NLRA, but lost the act's protection in the second and third. The board in Atlantic Steel reviews the context of the speech, breaking it down into: (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. Id. at 816.
The Board's Decision
The board took the case as an opportunity to recalibrate not only its Atlantic Steel doctrine to fit the Chamber of Commerce's specifications, but also its rules applicable to all abusive language engaged in in the course of protected activity, i.e., on social media -- where it had applied a "totality of the circumstances" test, e.g., Pier Sixty, LLC, 362 NLRB 505, 506 (2015), enf'd 855 F.3d 115 (2nd Cir. 2017) (Facebook attack on manager held protected: "Bob is such a NASTY MOTHER FUCKER don't know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!") -- and on picket lines, where the question the board had traditionally asked had been whether "the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984). Neither of the latter two factual scenarios were involved in General Motors. Id. at n.22.
The board announced it would retroactively and prospectively apply its Wright Line test in all three contexts: "the General Counsel must make an initial showing that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. If the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity." 251 NLRB 1083 (1980), enforced 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).
Wright Line had not been applied to cases involving abusive conduct/protected activity cases because Wright Line was constructed to address "mixed-motive" cases where the employer's adverse action against an employee was not in direct and undisputed response to protected activity. E.g., Roemer Industries, Inc., 362 NLRB 828, 834 n.15 (2015) enforced 688 Fed. Appx. 340 (6th Cir. 2017). The board, remanding to the ALJ for further analysis under the new standard, purported to disentangle the abusive component from the protected character of the subject activity, to provide a more reliable and consistent analysis for these lines of cases, to ensure the employer's ability to "maintain order and respect," and to avoid interference with the employer's duties to comply with anti-discrimination law. As the General Motors board scolded: "the Board wrote in Consumer Power Co., 282 NLRB 130 (1986), 'The Board has long held ... that there are certain parameters within which employees may act when engaged in concerted activities. The protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.' Id. at 132. We believe, however, that this rationale is overstated and has largely swallowed employers' concomitant right to maintain order, respect, and a workplace free from invidious discrimination."
The General Motors decision is an employer-oriented solution in search of a problem which threatens to disregard the realities of 2020 workplaces, and shift the balance yet further away from the employee-protective purpose that animated the enactment of the NLRA. In addition to its rationales about precedential consistency and maintenance of workplace order, the board earnestly, if cynically, offered the rare instance of the employer's duty to enforce anti-discrimination law as ballast for this tectonic shift in doctrine, even in the face of the obvious necessity of reliance on context to determine the actionability of arguably harassing conduct and expression in that realm as well. E.g., Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (Where a supervisor addressed an African-American employee as "boy," the question as to the actionability of that language "may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.") The only saving grace of the decision is that even this board still recognizes that employers must be nondiscriminatory in application of their anti-abusive language rules, which is inherent in the Wright Line standard. General Motors at n.23; Turtle Bay Resorts, 353 NLRB 1242, 1243 (2009).
Among the manifold flaws in the decision, this article highlights three: its unauthorized tilt toward management and "maintenance of order"; its concomitant invitation to employer detachment from workplace and societal norms; and its reliance on important but largely inapplicable concerns about anti-discrimination law.
The NLRB Continues to Tilt Against the Interests of Employees
Under Donald Trump's appointees, the NLRB has "systematically rolled back workers' rights to form unions and engage in collective bargaining with their employers, to the detriment of workers, their communities, and the economy." McNicholas, Poydock, Rhinehart, "Unprecedented: The Trump NLRB's attack on workers' rights," Economic Policy Institute (October 16, 2019); Cohen, "How Trump Could Dismantle Workers' Rights with Another Four Years; In just his first term, he's been a fairly effective union buster," Washington Monthly (April/May/June 2020).
With its latest overreach in General Motors, the board did not merely incinerate well-established doctrine and inappropriately issue an advisory opinion (Snohomish Cty Headstart, 254 NLRB 1372 (1981)), it abandoned its charge as the expert labor relations administrative agency in the private sector (International Ass'n of Machinists v. NLRB, 311 U.S. 72, 79 (1941)) by diminishing the importance of the context of the offensive speech. Its new approach ignores the fact that "the economic power of the employer and employee are not equal, that tempers may run high in this emotional field, that the language of the shop is not the language of 'polite society,' and that tolerance of some deviation from that which might be the most desirable behavior is required ... and offensive, vulgar, defamatory or opprobrious remarks uttered during the course of protected activities will not remove activities from the Act's protection unless they are so flagrant, violent, or extreme as to render the individual unfit for further service." Constellium Rolled Prods., 366 NLRB No. 131 n.12 (2018) (citing cases) enf. den. and remand Constellium Rolled Prods. Ravenswood, LLC v. NLRB, 945 F.3d 546 (D. C. Cir. 2019). The decision exalts employer authority to respond adversely to exuberant protected employee conduct based on an outmoded and monolithic vision of the workplace environment, transgressing the employee-protective basis of the NLRA.
The Modern Workplace Is Not a Debating Society
Despite the Trump board's equation of use of profanity with workplace disorder, just the opposite is more likely the case in 2020 (and for that matter, for the last decade or two). Anyone who's conversant with social media, contemporary network and cable television, streaming services, music, film and other entertainment and communications sources would have to acknowledge profligate use of profanity and what used to be considered "vulgar" speech and depictions. Bergen, "Op-Ed: Profanity gets a stamp of approval from the Supreme Court" LA Times (June 27, 2019); Bella, "The '7 Dirty Words' Turn 40, but They're Still Dirty," The Atlantic (May 24, 2012).
There's also been a considerable shift in how cursing is looked at in the workplace among co-workers. According to a study from the University of East Anglia in the U.K., the use of profanity in the office has been found to often help build relationships among co-workers and relieve stress. Cursing's growing cultural acceptance post-"Seven Dirty Words" is seen perhaps most visibly within the realm of social media, as evident by the 47% of Facebook users who have profanity on their "Walls," according to Reppler's May 2011 survey of 30,000 Facebook users." See also Baruch and Jenkins, "Swearing at work and permissive leadership culture; When anti-social becomes social and incivility is acceptable," 28 Leadership & Organization Development Journal 492, 494 (January 2007) (" In the Western model, swearing is considered powerful because it challenges the societal class codes. This is particularly the case with interactions between the working class and the middle and upper classes (Chaika, 1982). However, working class people who use taboo language may not intend to shock; they may simply consider it to be an everyday norm (Hughes, 1992). Overall, the amount of profanity used in conversation has increased dramatically during the past few decades (DuFrene and Lehman, 2002)."
To be sure, employers do have the authority to set the tone of their workplaces, and can establish rules against certain language and expressions and enforce them in a reasonable non-discriminatory manner. For its part, however, the board in the General Motors decision could be signaling that there are "magic" words that, when uttered by an employee, can lead to discharge because they per se represent a threat to an orderly workplace. That approach, however, does not comport with the natural heat of labor disputes, or of contemporary reality, modern use of language, or a practical and effective policy for maintaining a workplace that is both productive and safe, acknowledging the importance of avoiding development of a hostile work environment.
The Hostile Environment Rationale
In dispensing with its established three sets of rules for analyzing combined protected activity and abusive language, the board expressed concern that it could find certain speech and conduct protected that was contributing to a hostile gendered or racial environment. The board in General Motors did not cite a single decision that held activity or conduct protected by the NLRA violated anti-discrimination law. The reality, moreover, is that the "nature of the outburst" component of the Atlantic Steel test would ensure that employees are protected from such hostile expression.
In general, Atlantic Steel aside, a conflict between protected speech and antidiscrimination law will seldom, if ever, arise. That is because most board cases involving such issues are about non-sexual (and non-racial) use of harsh or profane language, and/or involve a single or small number of objectionable statements that do not, by themselves, fit the definition of a hostile environment, that again calls for a totality of circumstances approach. See, e.g., Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998); Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 279 (2006)). Moreover, most of the valid hostile environment cases have supervisors or managers -- not protected by the act or generally represented by unions -- as perpetrators, whereas only a subordinate employee can claim protection for her speech combined with protected conduct under the act. Of course, if an employee were to engage in such severe sustained misconduct while still somehow maintaining a plausible claim for NLRA protection, the employer should have no trouble convincing the board that it was justified in discharging that employee.
Conclusion
The General Motors decision is illustrative not of an administrative agency interested in improving the state of the law, or in enhancing its mission of protecting workers' rights under its statute. The NLRB is, indeed, however, on a mission -- one that serves employers' interests in facilitating their ability to threaten and chill employee rights and expression when, predictably and naturally, they are at their most vital and exuberant, manifested in the course of engaging in protected activity, pushing back on employer's mistreatment of workers and/or violations of their obligations. The result-oriented largely advisory opinion cannot be accurately explained in any other way.