Lessons from the General Motors LLC v NLRB Case

TO: Executive Leadership 

RE: Legal Update – Profanity and Protected Union Activities 

An earlier ruling in a case involving General Motors LLC and the National Labor Relations Board, (NLRB) has paved the way and given employers in the private sector the legal capacity to discipline or fire employees for sexist, racist, and various forms of profane speech within the context of union-related activities or activism. However, the rule emphasized the need to uphold and respect Wright Line standards, also referred to as the test, which served as the protection of workers and their representatives against disciplinary actions whenever they engaged in protected union activities. The standard applied to the speech and conduct of workers during their interactions with organizational managers, whether verbally, in writing, or over various social media platforms.

Ostensibly, the burden of proof lied with the management to show that disciplinary action against a particular employee was necessary. Otherwise, workers could sue for damages whenever subjected to disciplinary actions for using abusive language or acting inappropriately while pursuing a union-related activity. The ruling overrides previous tests, which were considerate of situational circumstances, such as whether an employee’s outburst of profanity was out of provocation, anger, and degree of exchange of worlds during picketing.

Background 

The Administrative Law Judge, Donna N. Dawson, on September 18, 2018, ruled that in General Motors LLC v NLRB - 369NLRB127 (2020) case, the respondent violated the Act by subjecting the defendant to disciplinary action after directing a profane outburst to a supervisor. Particularly, General Motors LLC's executive suspended Charles Robinson for using profane language towards his supervisor, Nicholas Nikolaenko on April 11, 2017. Robinson’s engagement amounted to a union activity because he sought answers to why a section of employees did not receive overtime coverage for their cross-training in a different trade area than their usual one. The judge evaluated the case according to the four-factor test, which is based on the Atlantic Steel Act. It emerged that Robinson’s conduct did not amount to misconduct beyond what was considered protected activities, since three of the four Atlantic steel factors favored protection.

However, the judge evaluated two subsequent instances when Robinsons reportedly responded with outbursts. It emerged that the employee's outbursts on April 25 and October 6 deprived him of the protection under the provisions of the Act. Apparently, both incidents involved altercations between Robinson and a manager identified as Anthony Stevens. Particularly, the judge established that Robinson had directed racially charged outbursts towards the manager on April 25. On October 6, he played loud music featuring offensive and racially charged lyrics whenever Stevens entered or left the room. These court findings set the stage for the case between General Motors and NLRB, as the latter has all along sought to protect workers engaging in racist, obscene, and sexually harassing conduct and speech when participating in union activities. Ostensibly, the protectionist nature of the Act led to conflicts in workplaces because employees had the leeway to use profane unacceptable profane language and secure protection.

The respondent asked the Board to overrule the Plaza Auto Act that grants employees using profane language at the workplace on the pretext of defending their union rights. The kind of language that some workers resort to is cannot be tolerated in any workplace that seeks to thrive on professionalism. In the exceptions brief, General Motors described Act as being at odds with the requirements and expectations of the contemporary workplace because it exposes employers to the risk of losing control of their workers and safety. Nevertheless, the respondent insisted that, although the court established correctly that Robinson's attacks were unprotected, the judge should have even emphasized the fact that they were particularly racially offensive. As such, the responded asked the Board to eliminate further the clause granting employees the protection against disciplinary action when they use racially offensive sentiments against anyone within the workplace context.

Key Findings 

A critical review of the case reveals that the case involved a black employee who had been suspended three times after repeatedly engaging in profane and racially offensive conduct. It emerges that he would seldom hesitate to use abusive language towards his seniors at the workplace because he was protected under the labor relations laws. Essentially, he doubled as a union committeeperson for the company and a bargaining unit representative. The exposure and experience working in these positions culminated in his awareness of the protectionist nature of the Board rules and regulations. Robinson’s conduct is a clear pointer that employees could deliberately go overboard and abuse the provisions of the Board regulations due to their protectionist nature.

Apparently, an employee or a unionist could use obscene, racist, and sexually harassing language against the employer and evade disciplinary action. The Board provisions protected such persons based on the provision that employees enjoyed the federal right to join workers’ unions. Nevertheless, the law provides that it is illegal to interfere or retaliate against a member or official acting on behalf of a union. On the other hand, employers must ensure their workplaces are secure and free from discrimination, as well as the various possible forms of harassment, such as bullying and abuse of human rights. As such, organizations must establish and enact policies stipulating appropriate disciplinary measures once an employee or a unionist act or behaves arrogantly at the workplace.

Significance and Meaning of the Ruling to the Company 

A clarification to determine the scope of the Wright Line test or standard is necessary to avoid a repeat of the conflict that ensued after subjecting Robinson to disciplinary actions. The tension between existing anti-discrimination laws and current NLRB standards requires a critical review for the company is to operate within the provisions of the law when disciplining employees. In essence, employers must ensure that their workplaces are conducive by eliminating and making these places devoid of all possible forms of harassment. The standards and anti-discrimination laws must conform to ensure that corrective actions meant to make the workplace secure do not culminate in legal suits. This is in view that an employer’s failure to take corrective action in the event of harassing conduct could easily lead to a hostile work environment, which could expose the employer to legal liability under anti-discrimination laws. At the organizational level, the management may establish local policies and terms outlining the company’s expectations when it comes to employee conduct, whether acting or responding in the capacity of a union representative.

The management must note that the court found General Motors in violation of the Act for the initial suspension on April 11 only. Regarding the subsequent incidents, the judge ruled that the company was not justified to suspend the employee for his inappropriate conduct. Hence, one can assert that there is hardly any clarity about what grounds or circumstances warrant a disciplinary action for a worker who resorts to using abusive language when addressing the employer, especially if the employee is seeking clarification regarding union matters. Certainly, the company must not tolerate abusive conduct among employees, much the respect and acknowledgment of the NLRB standards and existing legislation on workers’ rights. Nevertheless, the company must become an active player in the push for more straightforward rules and standards, which could be achieved by sending exception briefs to respective authorities.