Q. May employees use abusive language when raising grievances about working conditions?
A. In many circumstances, the answer is (again) yes. On May 1, the National Labor Relations Board (NLRB or Board) overruled its July 2020 decision that changed the standard for cases involving “abusive employee conduct” during labor disputes and negotiations, reverting back to a test that it used in some form or another for approximately 70 years. In its decision, the NLRB found that an employee did not lose National Labor Relations Act (NLRA) Section 7 protections when he used strong language and acted less than civil when raising grievances about working conditions.
By way of background, Section 7 protects employees who engage in labor practices, such as forming unions and collective bargaining. Not all conduct is protected, however. The question before the Board was whether employees who exhibit abusive conduct while engaging in protected activity are afforded Section 7 protections.
From 2016 through 2018, a union employee raised numerous grievances regarding working conditions, including safety issues, on behalf of himself and other employees. In some meetings with management, the employee became engaged in heated discussions and arguments with management. He was disciplined in 2017 for his conduct at a safety meeting. Over the 2016 to 2018 period, the employee also received performance-related discipline. In 2018, the employer presented the employee with a last chance agreement. The employee disagreed with the allegations in the agreement, which related mostly to his conduct when articulating some of the grievances, such as using inflammatory and insulting language. The employee refused to sign the agreement and was discharged.
In May 2020, the NLRB issued a decision determining that the employee was improperly disciplined and discharged for engaging in protected union activity. In so doing, the Board relied on a four-factor test it had used since 1979, which included the place of the discussion; the subject matter of the discussion; the nature of the employee’s outburst; and whether the outburst was provoked by the employer’s unfair labor practices. The Board found that the employee’s protected outburst related to workplace safety concerns and occurred at a meeting to discuss safety in the workplace. It also found it was part of an ongoing dialogue about safety within the company. The employee did not use profanity or directly insult a supervisor, even though the discussion was heated and argumentative. The Board did find that the outburst was not provoked by the employer’s unfair practices, but since the other three factors supported the employee, the Board ruled in his favor. After the Board issued its May 2020 decision, the company appealed the order to the Fifth Circuit, and the Board cross-appealed to enforce the order.
Two months later, in July 2020, the Board issued another decision, overruling its May 2020 decision and the four-factor test. In its July 2020 decision, the Board concluded that the fundamental issue when evaluating abusive conduct is not the nature of the employee’s conduct, but rather the employer’s motivation. That is, rather than considering whether the employee engaged in otherwise protected activity when the abusive conduct occurred, the Board concluded that the relevant question was whether the employer acted in good faith when taking adverse action.
After the July 2020 decision, the Board filed an unopposed motion to remand the case, so it could evaluate the impact of the July 2020 decision. The Fifth Circuit granted remand, leading to the May 2023 decision. In the current decision, the Board reversed course again, reverting back to the four-factor test articulated in its May 2020 decision.
Legal Analysis and Policy Reasons
Among other things, the Board criticized the test articulated in its July 2020 decision as allowing the employer to determine the propriety of employee conduct related to protected labor activity, rather than considering whether the employee engaged in protected conduct. The Board concluded that this approach gave employers more power than workers; if an employer acted in good faith, it would not actually matter whether the employee engaged in protected conduct. An employer’s good-faith belief that the employee had engaged in unprotected conduct would be enough, even if it was ultimately factually untrue. The NLRB found that this violated Congress’ intent in seeking to protect workers and union-related conduct.
The Board also concluded that employees must feel free to express their opinions and push back without fear of retaliation when bargaining with employers. Furthermore, according to the Board, the nature of labor disputes, which often involve questions of livelihood and pay, will likely promote strong feelings, which may be expressed in less than civil ways. The NLRA is not a civility code, the Board said, and a higher degree of, for example, inflammatory language should be tolerated when it relates to Section 7 protected activity.
The Board’s decision is a return to the way it has evaluated employee conduct in the context of labor disputes for some 70 years. While the decision provides employees with more freedom to use abusive language when engaging in protected activity, not all abusive conduct will be tolerated. The Board likely will continue to use the four-factor test in determining whether abusive conduct is protected, which considers location, the subject matter of the discussion, the nature of the outburst, and whether it was provoked by the employer’s unfair labor practices.
Nevertheless, in light of this decision, employers should take care to thoughtfully evaluate any alleged abusive conduct by employees that may be protected by Section 7 before taking adverse employment action. Conduct and language that may result in discipline in ordinary circumstances may be acceptable during labor disputes. Employers should carefully document any alleged abuses and consider whether they concern union activity before taking any adverse employment action.
For more information, please contact a member of the Troutman Pepper Labor + Employment team.