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Are the Tides Changing? NLRB Reconsiders Standards for Evaluating When an Employee’s Conduct Results in Loss of NLRA Protection
September 27, 2019
Parsons Behle & Latimer Legal Briefings


Employees are provided extensive leeway in the language they use with employers when engaged in activity that is protected by National Labor Relations Act (NLRA or the Act).  But, on Sept. 5, 2019, the National Labor Relations Board (the Board) issued a notice and invitation to the public to file briefing on the issue of what standards should apply for determining whether an employee’s profane outbursts and offensive statements, made while engaging in protected concerted activity, result in the employee’s loss of protection afforded by the NLRA. The notice and case at issue – General Motors LLC and Charles Robinson, Cases 14-CA-197985, 14-CA-208242 (Sept. 5, 2019) – signals that the Board is seriously considering deviating from the established standards that have provided significant protection to employees who use offensive, vulgar, defamatory or opprobrious remarks during protected activities. 

The Board’s invitation follows a decision made by an Administrative Law Judge (ALJ) that General Motor’s management violated the Act by suspending employee Charles Robinson when he directed a profane outburst at a supervisor during an April 11, 2017, meeting. The ALJ found, however, that Robinson lost the Act’s protection due to his outbursts during meetings held on April 25, 2017, and Oct. 6, 2017, which led to his lawful discipline.

April 11, 2017, Incident

On April 11, Robinson, also a union representative, confronted management official Nicholas Nikolaenko on the production floor in the managers’ office area. Robinson was upset about management’s apparent failure to fulfill a verbal agreement to provide overtime coverage for unit employees when they were sent for cross-training in another trade area. Witnesses to the encounter testified that Robinson told Nikolaneko that “he did not “give a f*** about your cross-training” and that Nikolaenko could “shove it up your f***ing a**.”  The ALJ also found that Robinson came within approximately one foot of Nikolaenko’s face during their encounter.  Robinson was suspended for three days and later filed a grievance due to the discipline.

In analyzing the grievance, the ALJ utilized what are known as the Atlantic Steel factors – a  four-factor test arising out of a 1979 NLRB case.  Considering the first factor – the place of discussion – the ALJ initially determined that when Robinson confronted Nikolaenko about the overtime coverage on the shop floor, he was engaged in protected, concerted activity because there was no evidence that it disrupted General Motors’ operations.  The shop floor was loud and there was no evidence that production employees were close enough to hear or observe the confrontation or that Robinson’s outburst affected management’s ability to maintain discipline among the production employees.  The ALJ found that this factor weighed in favor of the Act’s protection.

Regarding the second Atlantic Steel factor – the subject matter of the confrontation – the ALJ found it weighed in favor of protection because Robinson sincerely believed that management had failed to comply with a verbal agreement with the union regarding overtime coverage, which was protected, concerted activity. 

The ALJ next found that the nature of Robinson’s outburst – the third factor – weighed in favor of protection because his conduct was not threatening enough to lose protection under the Act.  While the confrontation included face-to-face use of profanity, the ALJ determined that Robinson did not put his finger in Nikolaenko’s face and Robinson did not threaten him personally with violence.  The ALJ reasoned that Robinson’s statements were only a “metaphor.”

Finally, the ALJ addressed the fourth Atlantic Steel factor: whether Robinson’s conduct was provoked by an unfair labor practice.  Even though there was no evidence that Nikolaenko’s refusal to provide overtime coverage was in fact an unfair labor practice, the ALJ nevertheless determined that the refusal provoked Robinson’s behavior because he had honestly believed that it was a breach of management’s verbal agreement with the union to provide overtime coverage.  As such, the ALJ found that this factor slightly weighing in favor of protection. 

Considering all four factors, the ALJ concluded that Robinson’s April 11, outburst was protected under the Act, that his outburst did not result in loss of protection and that management violated the Act when it suspended Robinson for his outburst.

April 25, 2017, Incident

On April 25, 2017, management and the union met to discuss subcontracting work in the paint shop at the facility. This incident involved Robinson’s altercations with manager Anthony Stevens during the meeting.  Robinson began asking questions about the work, hours and shifts for the bargaining unit employees and requested information regarding all costs associated with paint shop.  Stevens cautioned Robinson that he was getting too loud and insisted that Robinson narrow his request for information.  Robinson pointed at management and grew more agitated and aggressive.  He also repeatedly referred to Stevens as, “Yes, Master, Your Master Anthony,” and “Yes, sir, Master Anthony,” which was in a “manner reminiscent of a slave talking to his master.”  Due to his conduct, management suspended Robinson for two weeks, and a grievance was filed.

Addressing the first Atlantic Steel factor, the ALJ determined that because the April 25, meeting took place behind closed doors and was attended only by management and union representatives, there was no disruption in the workplace or interference with management’s ability to manage its employees.  This factor weighed in favor of the Act’s protection.

Regarding the second factor, the ALJ determined that the subject matter of the discussion weighed in favor of protection because subcontracting out work relates to the “terms and conditions of employment” – a subject of protected activity.

The ALJ next found that the nature of Robinson’s outburst weighed against protection under the Act.  Robinson’s repeated use of “slave vernacular” insinuated that Stevens wanted Robinson to be “subservient or treat him like a slave master.” The ALJ determined that Robinson’s conduct was a personal attack on Stevens and that it negatively impacted other meeting attendees such that Robinson was “unfit at that time to carry out his union duties.”

The ALJ also found that Robinson’s conduct was not provoked by an unfair labor practice. This finding was based on the ALJ’s determination that there was no evidence that supported a finding that management had engaged in an unfair labor practice when Robinson was asked to narrow his request for information concerning the paint shop’s costs.

After weighing all four factors, the ALJ held that General Motors did not violate the Act when it disciplined Robinson for the April 25, meeting because Robinson’s conduct resulted in the loss of protection.

Oct. 6, 2017, Incident

On Oct. 6, the union and management held a regularly-scheduled meeting to discuss the moving of manpower and the creation of four new electrician jobs in connection with the production of a new automobile.  This incident also involved Robinson’s altercations with Stevens during the meeting.  There clearly was animosity between the two.  Robinson was asking questions about the duties of the new positions and the union’s need to have the job descriptions.  After Robinson’s questions were addressed by management, Stevens stated the meeting needed to move on to other topics.  Robinson then looked at Stevens and stated, “I will mess you up.”  Stevens asked whether Robinson’s comment was a threat, and Robinson responded, “You can take that as a threat if you want to.  It was feedback,” while pointing towards Stevens. Robinson also repeatedly told Stevens that he should not be at the meeting, because he did not normally attend the manpower meetings.  (Management had asked that Stevens attend due to the importance of the matter – an imminent shift change and inability to finish the necessary manpower moves.)

At some point during the meeting, Robinson’s cell phone began playing music that was loud enough to be heard by everyone in the room.  Management asked Robinson to turn off or turn down the music. He apparently did not comply. Robinson testified that the only music playing was the country song “Friends in Low Places,” by Garth Brooks, and that the music was not loud.  Management testified that the music playing on Robinson’s phone included music by Public Enemy – i.e., “Straight out of Compton,” “F*** the Police,” and “Dope Man,” which contained “offensive lyrics and words such as the “N” word and “F*** the police.”  There was also testimony that Robinson would turn off the music when Stevens left the room to conduct other business and would turn the music back on when Stevens returned.  When Robinson left the meeting, he also told management not to “f*** up” the manpower moves.

On Oct. 17, and after an investigation conducted by a labor relations manager, General Motor’s management issued Robinson a suspension for the threat he made to Stevens and for disrupting the Oct. 6, meeting by playing music that contained objectionable language and racially-charged lyrics.  A grievance followed.

The ALJ first determined that the location of the Oct. 6 closed-door meeting, which was in the same location as the April 25, meeting, weighed in favor of the Act’s protection because there was no disruption in the workplace or interference with management’s ability to manage its employees as a result of Robinson’s conduct.  The ALJ also found that the subject matter of the discussion during the Oct. 6 meeting weighed in factor of protection because the manpower meeting was related to the collective bargaining agreement and Robinson’s duties as a union representative.

With respect to the “the nature of the outburst” factor, the ALJ found that Robinson’s threat to “mess” Stevens “up” was not physically menacing or aggressive, and, standing alone, was not sufficient to result in loss of protection under the Act.  However, Robinson’s overall behavior during the meeting – including playing loud rap music with offensive lyrics and use of profanity when leaving the meeting – weighed heavily against protection by the Act. The ALJ further found that there was no evidence supporting the position that Robinson’s conduct was provoked by an unfair labor practice.  As such, both the third and fourth Atlantic Steel factors weighed against the Act’s protection.

Given the foregoing analysis, the ALJ determined that General Motors did not violate the Act when it suspended Robinson for his conduct during the Oct. 6 manpower meeting.  

What Does the Board’s Notice and Invitation Mean?

General Motors filed papers with the Board challenging, in part, the ALJ’s finding that Robinson was engaged in protected activity and that he did not lose protection of the Act as a result of his April 11, 2017, outburst.  General Motors also requested that the Board overrule prior case law where it was determined that employees did not lose protection of the Act by using profanity, including sexually and racially-offensive language.  The Board granted General Motors’ request, and seeks input on the following questions, among other things: 

  • Under what circumstances should profane language or sexually or racially offensive speech result in an employee’s loss of protection provided by the Act? 
  • While the Board has held that employees must be granted some leeway when engaged in protected activity (due to the nature of industrial life and disputes that are likely to engender ill feelings and strong responses), to what extent should this “leeway” be applicable with respect to profanity or language that is offensive to others on the basis of race or sex? 
  • Should an analysis of whether the Act’s protection is lost include a consideration of the norms of the workplace and whether profanity is commonly tolerated? 

The invitation presents a significant opportunity to persuade the Board that the Act should not provide the significantly high level of protection to employees that it has for years.  Industrial work is difficult. Emotions between management and unions can certainly become elevated, given what is at issue when engaged in protected activity.  But is there any civility left in this day in age? In both politics and in the workplace – there should be.

To contact Slade about this or other employment-related topics, please call (208) 562-4900 or send an email to ssokol@parsonsbehe.com.

 

 

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