The National Labor Relations Board (NLRB) recently made a pro-employee decision, holding that the familiar Wright Line standard no longer governs cases involving employees disciplined for engaging in offensive or abusive conduct while participating in activities protected by Section 7 of the National Labor Relations Act (NLRA). Instead, the Board re-adopted “setting-specific” standards for those cases. This decision has significant implications for employees and employers alike.
The National Labor Relations Board is an independent federal agency created by Congress in 1935 to administer and interpret the National Labor Relations Act, which protects the rights of employees, employers, and unions to engage in collective bargaining and other union-related activities.
The NLRB is an independent federal agency that enforces the NLRA, which protects the rights of employees to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. Additionally, the NLRB protects employees’ rights to form, join, or assist unions, as well as their rights to refrain from such activities.
Re-adoption of “Setting-Specific” standards
In Lion Elastomers LLC, the board reaffirmed the principle that, to safeguard their statutory rights in often-heated labor disputes, employees must have some leeway for their behavior. Hence, the board rejected the Wright Line approach in favor of the three “traditional” setting-specific standards that the board abandoned in General Motors.
Common Occurrence of “Mixed-Motive” Fact Scenarios
Cases involving such “mixed-motive” fact scenarios are not uncommon. Employees may engage in protected activity, such as engaging in union organizing or bargaining, while at the same time engaging in offensive or abusive conduct, such as making threats or using profanity towards management, supervisors, or other employees.
Requirements under the Wright Line standard
Under the Wright Line standard, the Board’s General Counsel had to prove that (1) the employee engaged in protected activity, (2) the employer knew about that activity, and (3) the employer harbored animus against it sufficient to establish a causal relationship between the discipline and the employee’s protected activity. This standard placed a heavy burden on employees, often making it difficult for them to prove their case.
Principles of Employee Leeway for Behavior in Heated Labor Disputes
The principle of employee leeway for behavior in heated labor disputes recognizes that employees must be allowed some latitude for their behavior in order to effectively exercise their rights under the NLRA. The NLRB has long recognized that labor disputes can be intense and emotional, and that employees may engage in conduct that is not polite or respectful during the process.
The rejection of the Wright Line approach in Lion Elastomers LLC
In Lion Elastomers LLC, the Board rejected the Wright Line approach in favor of the three “traditional” setting-specific standards that the Board had abandoned in General Motors. The Board determined that this approach would better safeguard employees’ statutory rights under the NLRA.
Retroactive application to all pending cases
The board has decided to apply its decision retroactively to all pending cases. This means that cases that were previously governed by the Wright Line standard will now be subject to the new setting-specific standards.
Totality of the Circumstances Test for Social Media Posts and Conversations Among Employees in the Workplace
For social media posts and in most cases involving conversations among employees in the workplace, the Board has endorsed a totality of the circumstances test. This test requires a review of all the circumstances surrounding the communication or conduct in question, including the language used, the context in which the communication or conduct occurred, and the identity of the parties involved.
Clear Pine Mouldings Standards for Picket-Line Conduct
Regarding picket-line conduct, the Board has endorsed the Clear Pine Mouldings standard, which considers whether, given all the circumstances, non-strikers had been reasonably coerced or intimidated by abusive conduct. This acknowledges that picketing may be a powerful activity and that non-strikers could be intimidated or feel coerced by the presence of strikers.
Benefits of Retroactive Application
Applying today’s holding retroactively will avoid the potential for inconsistency in pending cases, restore judicially approved standards to this area of law, and ensure that our decision serves its intended goal of adequately protecting employees’ exercise of Section 7 rights, as Board law did for many decades.
The NLRB’s decision to readopt “setting-specific” standards in cases involving offensive or abusive conduct by employees engaged in protected activity is a significant victory for employees. This decision recognizes that employees must be allowed some latitude for their behavior to effectively exercise their rights under the NLRA. Employers should take note of this decision and ensure that their disciplinary policies and procedures are consistent with the new standards.