On Monday, the National Labor Relations Board (the “Board” or “NLRB”), with a majority of appointees by President Biden, i.e., “the Biden-Board,” reversed the short-lived General Motors LLC, 369 NLRB No. 127 (2020) decision and reinstated the Atlantic Steel test for analyzing whether an employee’s grossly unprofessional conduct when engaging in union or other protected concerted activity loses the protection of the National Labor Relations Act (“Act”). The Board issued Lion Elastomers, LLC, 372 NLRB No. 83 (2023) and reinstated Atlantic Steel 245 NLRB 814 (1979) and its progeny, making it more difficult for employers to discipline employees who engage in outrageous, otherwise inappropriate, speech and/or actions in the course of engaging in union or other protected concerted activity.
These Atlantic Steel cases arise in situations in which an employee engages in union activity or other Section 7 concerted protected activity, such as advocating for a change in workplace conditions, but goes about this activity in a manner so outrageous that the employer disciplines or terminates the employee for their inappropriate conduct. Under Atlantic Steel, if the NLRB can establish that an employer disciplined an employee for misconduct that occurred while the employee was engaged in protected union or other concerted activity, the only question is whether the employee’s conduct was so egregious that it loses the protection of the Act—it does not matter that the employer would have taken the same action against other similarly situated employees not engaged in union activity or that the employer’s actions were carried out with good faith. In determining whether an employee’s outburst loses the protection of the Act, the Board considers (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
For example, in 2015, in Pier Sixty, 362 NLRB 505, 506-508 (2015), an employee posted a public update on his Facebook page saying his manager was, “…such a NASTY MOTHER F[****]ER don’t know how to talk to people!!!!!! F[***] his mother and his entire f[***]ing 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 the Board’s Atlantic Steel test, the Board held that because the employee was advocating for the union (by writing “Vote yes for the Union”) the employer could not terminate the employee for his Facebook post. The Board reasoned that calling the manager a “nasty mother f[***]er” was just part of the employee’s colorful language when advocating for the union and was thus not so egregious as 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 yelling racial epithets at supervisors and other employees who crossed the picket line. The Board held 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’—harsh language ‘must be regarded as an integral and inseparable part of [the employees’] picket and strike activity,’ protected by the Act.
Notably, obviously, the 1952 decision was issued before Title VII of the Civil Rights Act of 1964 was passed, racial harassment was held to be unlawful discrimination and the limits of acceptable workplace conduct began a more civilized evolution.
In 2020, in recognition of the evolution of what constitutes acceptable workplace conduct, the Trump Board overturned 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 conduct so long as the employer treated other similarly situated employees in the same manner. The Trump Board recognized that protecting racist, sexist, and other discriminatory speech just because it is related to union activity set the NLRA on a collision course with Title VII and other anti-discrimination statutes.
Unfortunately for employers, this week, the Biden Board overturned General Motors and reinstated the Atlantic Steel rule; apparently disregarding the evolution of standards for judging inappropriate workplace conduct as long as an employee’s racist comments are at least connected tangentially to workplace complaints. The criticism long lobbed at the Atlantic Steel standard that the NLRB reinstated today is that it gives the NLRB carte blanche to excuse employees’ bad behavior that would be otherwise absolutely intolerable at the workplace. Judge Patricia Millett of the United States Court of Appeals for the District of Columbia Circuit, criticized this approach in her 2016 concurrence in Consolidated Communications v. NLRB, noting that the NLRB’s approach is “too-often cavalier and enabling” of sexually and racially demeaning employee misconduct:
Those decisions 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 disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.
Millet went on to point out that, “time and again the Board’s decisions have given short shrift to gender-targeted behavior, the message of which is calculated to be sexually derogatory and demeaning,” excusing behavior provided it does not rise to the level of a “threat,” and asking, exasperatedly, “how on earth can calling an African-American worker [the n word] be a tolerated mode of communicating worker grievances.”
The Biden-Board dismissed or ignored all of these concerns, explaining that in its view, advocating for a union permits employees to use racial epithets, make sexually derogatory remarks, engage in other discriminatory and harassing behavior, and call supervisors unspeakable names. The rationale is that employees advocating for unions are legally permitted to give in to “animal exuberance” and so, 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 decision to rely upon decisions from a very different time to find the use of slurs and other inappropriate language to constitute “protected activity” under the Act.
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