NLRB Ruling Allows Employers To Discipline Employees For Abusive Conduct Even If Made In The Context Of Labor Relations

By: Henry Arnett and Colleen Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
Telephone: 614-224-7771

The NLRB recently issued another pro-employer, anti-union/employee ruling. In the past, union employees/representatives have had some protection if things got a little heated between the representatives and management. Profanity, yelling, even racist or sexist remarks, made by representatives and directed towards management, could be considered as protected activity, so that the employer could not discipline the employee. As the Board noted, it has assumed that the abusive conduct and the protected Section 7 activity are analytically inseparable. Therefore, an employer could not discipline the employee for the remarks or conduct without infringing upon the employee’s rights under the NLRA.

However, that is no longer the case. In General Motors LLC and Charles Robinson. Cases 14–CA–197985 and 14–CA–208242, decided by the NLRB on July 21, 2020, the Board granted much more leeway for employers to discipline employees for abusive conduct even if made in the context of labor relations. As the Board noted, it “will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.” While holding that NLRA rights were still being protected, the Board made it clear that “employees who engage in abusive conduct in the course of Section 7 activity will not receive greater protection from discipline than other employees who engage in abusive conduct.”