Labor & Employment E-lert: NLRB Paves the Way for Employee Terminations Based on Profane Outbursts

By: William H. Andrews, Of Counsel

The National Labor Relations Board is governed by a five person Board, all of whom are appointed by the President with the consent of the Senate. Board members are appointed to five year terms with one rotating off each year. This means that after three years, a sitting President can appoint a majority of the Board whose ideas and philosophies on labor relations more clearly reflect those of the President.

When a case comes before the Board, it is almost always referred to a three member panel, and since the board chair who is also appointed by the President selects the panel, there is almost always at least two Trump appointees among the three member panel. As a result, numerous decisions and policy statements issued by the Obama Board have been overturned.

The most recent decision in which the Trump Board reversed prior precedent is the standard to be applied when an employer terminates an employee for profane and abusive conduct. See, General Motors LLC and Charles Robinson (14-CA-197985), issued on July 21, 2020.  The Board’s decision in General Motors makes it easier for employers to defend the firing of employees over offensive behavior during strikes and other labor actions, reversing a standard that protected employees who curse out their bosses and make racist comments. Specifically, the Board in General Motors reversed the Administrative Law Judge’s decision that General Motors violated the National Labor Relations Act (NLRA) by suspending an employee for directing the F-word to a supervisor. With this reversal, the NLRB changed the framework for analyzing whether an employee’s statements are so egregious that he or she loses the protection of the NLRA.

The Board noted that previous decisions failed to take into account employer arguments that the discipline at issue was motivated solely by abusive conduct, and not taken in retaliation for actions protected by the NLRA. According to Board Chair John Ring, “this is a long overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the work place.” The Board in General Motors held that Board prosecutors bringing unfair firing cases must first prove the employee’s protected activity factored into the discipline. The employer then has an opportunity to prove it would have fired the employee absent the protected activity for reasons such as engaging in profane or abusive conduct.  Justifying its reversal, the Board noted that this standard “promises more reliable, less arbitrary and more equitable treatment of abusive conduct.”

This decision is a big win for management. Employers may now discipline or terminate employees who engage in egregious misconduct with knowledge that they have a defensible position should a question arise as to whether the employer engaged in an unfair labor practice. 

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