Racist, sexist and threatening behavior is acceptable in the workplace as long as it is related to union activity: the return of Atlantic Steel | Epstein Becker & Green

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On Monday, the National Labor Relations Board (the “Board” or “NLRB”), with a majority of President Biden appointees, i.e. “the Biden-Board,” rescinded the short-lived General Motors LLC, 369 NLRB No. 127 (2020) and reinstated the Atlantic Steel test to analyze whether an employee’s patently unprofessional conduct when engaging in a union or other protected concerted activity loses the protection of the National Labor Relations Act (“Act”). Commission issued Lion Elastomers, LLC, 372 NLRB No. 83 (2023) and reinstated Atlantic Steel 245 NLRB 814 (1979) and its offspring, making it harder for employers to discipline employees who engage in speech scandalous, otherwise inappropriate, and/or actions in the exercise of union business or other protected concerted activity.

These Atlantic Steel cases arise in situations where an employee engages in union activity or other concerted protected activity under Section 7, such as promoting a change in working conditions, but takes it in such an outrageous way that the employer sanctions or terminates the employee for his inappropriate conduct. Under Atlantic Steel, if the NLRB can establish that an employer disciplined an employee for misconduct while the employee was engaged in protected union activity or other concerted activity, the only question is whether the employee’s conduct was so flagrant as to lose the protection of the law—whether the employer took the same action against other similarly situated employees who do not engage in union activities or that the employer’s actions have been carried out in good faith. In determining whether an employee’s outburst loses the protection of the Act, the Commission considers (1) the location of the discussion; (2) topic of discussion; (3) the nature of the employee’s outburst; and (4) whether the explosion was in any way caused by an employer’s unfair labor practices.

For example, in 2015, in Pier Sixty, 362 NLRB 505, 506-508 (2015), an employee posted a public update on her Facebook page saying her manager was, “…such a NASTY MOTHER F[****]ER can’t talk to people!!!!!! F[***] his mother and all his f[***]with family !!!! What a loser!!!! Vote YES for the UNION!!!!!!! [Note from the authors: The employee at issue in Pier Sixty did not self-censor.] Under Atlantic Steel’s test, the Commission ruled that because the employee was defending the union (by writing, “Vote yes for the union”), the employer could not fire the employee for his Facebook post. The board felt that calling the manager a “bad mother f[***]uh” was simply part of the employee’s colorful language when defending the union and therefore not blatant enough to lose the protection of the Act.

In another infamous example, Longview Furniture Co, 100 NLRB 301 (1952), the Board ordered an employer to reinstate an employee who stood on the picket line shouting racial epithets at supervisors and other employees who crossed. the picket line. The Board found that:

given the realities of strikes and picket lines — “it is common knowledge that in a strike where vital economic issues are at stake, striking employees will resent those who cross the picket line” — the harsh language “must be considered as an integral and inseparable part of [the employees’] picketing and strike activities”, protected by the Act.

Notably, of course, the 1952 ruling was made before Title VII of the Civil Rights Act of 1964 was passed, racial harassment was considered unlawful discrimination and the limits of acceptable conduct in the workplace work began a more civilized evolution.

In 2020, recognizing the evolution of what constitutes acceptable conduct in the workplace, the Trump Board struck down the Atlantic Steel standard in General Motors and determined that these cases should be analyzed under the Wright Line analysis. , providing that an employer could discipline an employee for such as long as the employer treats other employees in a similar situation in the same way. The Trump Board has acknowledged that protecting racist, sexist and other discriminatory speech simply because it is related to union activity has put the NLRA on a collision course with Title VII and other anti-discrimination laws. .

Unfortunately for employers, this week Biden’s board overthrew General Motors and reinstated Atlantic Steel’s rule; seemingly disregarding evolving standards for judging inappropriate workplace conduct so long as an employee’s racist comments are at least tangentially linked to workplace complaints. The criticism long leveled at the Atlantic Steel standard that the NLRB reinstated today is that it gives the NLRB carte blanche to excuse employee misbehavior that would otherwise be absolutely intolerable in the workplace. Judge Patricia Millett of the United States Court of Appeals for the District of Columbia Circuit criticized this approach in her 2016 settlement in Consolidated Communications v. employee misconduct:

These rulings have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially derogatory conduct that the Commission’s decisions have ruled out encapsulates the very kinds of demeaning and demeaning messaging that for too much of our history has trapped women and minorities in second-rate workplace status. class.

Millet went on to point out that, “time and again, Council decisions have disregarded sexist behavior, the message of which is intended to be sexually derogatory and degrading,” excusing the behavior provided it does not reach the level of a ‘threat’ and asking, exasperated, ‘what the hell do you call an African American worker [the n word] be a tolerated way of communicating workers’ grievances.

The Biden-Board dismissed or ignored all such concerns, explaining that in its view, defending a union allows employees to use racial epithets, make sexually derogatory remarks, engage in other behavior discriminatory and harassing and calling supervisors names beyond description. The reasoning is that employees who defend unions are legally allowed to indulge in “animal exuberance” and thus, the federal government will protect them from the consequences of their actions.

The return of Atlantic Steel is not unexpected. It is disappointing to say the least that the NLRB appears in this ruling to rely on rulings from a very different time to conclude that the use of insults and other inappropriate language constitutes a “protected activity” under the Law.

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