Introduction
On the day of his inauguration, President Biden fired former National Labor Relations Board (Board) General Counsel Peter Robb.1 President Biden eventually replaced Robb with General Counsel Jennifer Abruzzo,2 who in August 2021 released a list of Board dispositions made during the Trump Administration that she wanted to revisit.3 Included in that list was General Motors,4 a July 2020 Board decision which some cheered as a step to making the workplace safer and more civil,5 and which others derided as yet another unnecessary concession to employers by the Trump Board.6 Pronouncing the end of what it termed “setting-specific” standards, the General Motors Board held that the only standard for determining when employers violated Section 8(a)(3)7 of the National Labor Relations Act (the Act)8 by disciplining abusive worker conduct would be drawn from its old and reliable Wright Line test.9
Section 8(a)(3) prohibits employers from discriminatorily disciplining—for example, terminating, demoting, suspending—workers for engaging in conduct that is protected by the Act.10 The setting-specific standards replaced by Wright Line had applied to employee conduct in the workplace, on the picket line, and on the Internet, and before General Motors they had provided the tests that the Board applied in dual motive cases when determining whether discriminatory Act violations had occurred following confrontations in each setting, respectively.11
The three overturned standards were known as Atlantic Steel, Clear Pine Mouldings, and Pier Sixty.12 Atlantic Steel provided the test for workplace confrontations,13 Clear Pine Mouldings supplied the test for the picket line,14 and Pier Sixty set forth standards governing social media.15 Each test applied different criteria based on the setting for which it was created, but they all existed in order to answer the same question: Was an employee who was engaging in behavior protected by the Act legally disciplined by the employer based on that conduct?16 If not, then disciplining the employee constituted an unfair labor practice (ULP), an illegal Act violation.17
Federal labor law has increasingly struggled when dealing with employee misconduct in the context of otherwise protected activity. Such misconduct may conflict with employer policies or even other workplace antidiscrimination protections but still implicate the Act’s core rights. And employers may not punish protected activity as they please.18 However, engaging in protected activity does not render an employee untouchable;19 an employer may possess legitimate reasons for disciplining a worker in response to her protected activity, and the Board had created tests over the years for determining when that was the case.20 Before General Motors, the Wright Line test was not relevant to making such determinations because it only applied when misconduct and protected activity were not intertwined.21 For example, if an employee was terminated on Wednesday after filing a workplace grievance on Monday and vandalizing the company bathroom on Tuesday, Wright Line’s test was previously—and is still now—applied to determine whether the employee was truly fired for her misconduct, or whether she was actually fired for filing the grievance.22 A finding that the employer’s real motivation was illegal discriminatory animus would constitute a ULP.23
The setting-specific standards applied similarly, with two notable differences.24 First, they only applied when the protected activity and opprobrious conduct occurred simultaneously, or in the Board’s language, formed part of the same res gestae.25 For instance, if while complaining to a manager about a collective-bargaining agreement (CBA) violation a worker also threatened visiting the manager’s home later that night and burning it to the ground, the resulting disciplinary action against the worker for such behavior would implicate the setting-specific standards. In such an instance, the protected activity—complaining about the violation—and the opprobrious conduct—making the threat—would have been considered inseparable because they occurred at the same time. According to previous Boards, such circumstances made it inescapable that the employer retaliated against the protected activity in at least some sense, and thus required a standard that presumed the employer acted out of anti-union animus if the worker’s behavior was sufficiently mild to retain statutory protections.26
Second, as the term “setting-specific” suggests, which analysis applied depended on the setting where the simultaneous protected activity and opprobrious conduct transpired.27 Opprobrious conduct comprised behavior that was deemed inappropriate, including profane or threatening language, and the Board would assess the degree of opprobriousness based on how inappropriate the conduct was for the setting.28 Thus, opprobrious or abusive conduct on the picket line underwent one analysis, on the Internet another, and at the workplace yet another, with every test meant to allow for different degrees of leeway based on how the relevant settings implicated the Act’s protections.29 If the employee’s conduct in the given setting was sufficiently abusive, he would lose the protections he had otherwise invoked and therefore could legally be disciplined for such behavior.30
The General Motors decision made Wright Line the only test for all dual motive reprisals involving abusive conduct,31 but making Wright Line the test for misconduct in the course of protected activity was a mistake. Although the General Motors Board identified legitimate problems with the setting-specific standards, including that such standards had problems with consistency and predictability and, even worse, that those standards occasionally shielded horribly racist and sexist behavior, there were alternative ways to address those flaws without diminishing Section 7 protections so greatly. Instead, the General Motors Board disregarded longstanding Board precedent by deciding that abusive conduct committed in the course of protected activity should not undergo a distinct test that grants more expressive leeway for workers, and thereby radically weakened the Act’s protections.
This Note will argue that the Board should overrule General Motors but not return to any of the old setting-specific standards. Instead of Wright Line, the Board should apply a new three-factor test—the Res Gestae standard—when analyzing a worker’s abusive conduct that occurred in the course of protected activity, regardless of location.32 Drawing from past setting-specific standards, the Res Gestae standard will consider: (1) the place of the outburst, (2) the outburst’s nature, and (3) whether the outburst was provoked by the employer.33 These factors should be weighted, meaning that if two factors favor the worker, her conduct is protected. However, there should be an exception to this calculus concerning only the second factor. If the nature of the worker’s abusive conduct sufficiently implicates other workplace antidiscrimination laws or constitutes violent threats, the conduct may lose protection even when the other two factors weigh in the worker’s favor.
Part I of this Note begins by reviewing the Board and the three overturned setting-specific standards. It then examines the Wright Line test and the conceptual divides separating it from the defunct setting-specific standards. Part II analyzes the setting-specific standards’ strengths and weaknesses, and the effects of replacing them with Wright Line. Part III proposes making the Res Gestae test the only standard for overlapping protected activity and abusive conduct analyses, regardless of location.
I. Background
A. The Board’s Role
Congress passed the Act and created the Board for enforcing the Act in 1935.34 The Board is an independent federal agency overseen by up to five Members, each of whom is nominated by the President and confirmed by the Senate.35 Every year, one Board Member’s term expires.36 The Board issues decisions after reviewing administrative law judge (ALJ) rulings,37 which are themselves subject to review by the federal circuit courts.38 Parties bring their claims—“charges” in the language of the Board—at the regional level, where staff investigates the charges and decides whether to pursue adjudicatory actions in front of an ALJ.39 The Board’s General Counsel oversees investigating and prosecuting ULPs, and operates independently from the Board.40 Following an ALJ decision, a party may file exceptions with the Board.41 If exceptions are filed, a Board panel will then review the entire ALJ record and issue a decision.42 Parties may thereafter petition for review of the Board decision in the federal courts of appeals.43
The Act gives the Board two primary functions: investigating and determining ULPs and certifying organizing elections.44 The Act’s core is Section 7, which defines employee workplace rights.45 Section 8 sets out what employer or union behavior constitutes ULPs violating those rights.46 Employers who unlawfully interfere with protected conduct must provide some combination of “make-whole remedies” following Board enforcement, such as reinstatement with backpay for terminated workers, and “informational remedies,” such as posting workplace notices.47 However, the Board cannot assess penalties for ULPs.48 Since the Act only covers private sector employees, the Board does not investigate public sector ULPs.49 Additionally, certain private employee categories are completely excluded from the Act’s protections.50
B. The Setting-Specific Standards
While the first several enumerated Section 7 rights—self-organizing, joining labor organizations, bargaining collectively51—are relatively straightforward, defining Section 7 protections regarding “other concerted activities for the purpose of . . . mutual aid or protection” has proven more difficult, reflecting the term’s more open-ended nature.52 The Board has maintained that in order for employee activity to fall under the provision’s “other concerted activities” scope, the activity must be both “protected” and “concerted,”53 hence the term protected concerted activity.54
Although the Act shields employees from certain forms of workplace retaliation, it obviously does not give them free rein whenever they engage in protected activity.55 Atlantic Steel and the other two setting-specific standards were created for determining when employees crossed a behavioral line allowing employers to discipline them legally, even though the discipline was in response to the exercise of Section 7 rights.56 Fixing the line was one of the Board’s most enduring and controversial problems,57 and was the issue it addressed in General Motors when reviewing how an ALJ applied Atlantic Steel’s workplace test.58
The three setting-specific standards were modeled differently from Wright Line based on one main belief: distinguishing where protected activity stopped and opprobrious conduct began when part of the same interaction would necessarily undermine the Act’s protections.59 For previous Boards, the employee-employer relationship was inherently contentious and adversarial in nature, and thus there were times when the Act needed to shield workers when workplace disputes inevitably turned hostile.60 In other words, allowing employers to use their normal disciplinary standards in response to protected activity would unacceptably weaken Section 7 in certain especially meaningful circumstances, and therefore the Board applied setting-specific standards that provided greater employee freedom of action in those situations.61 These standards stood in contrast to the Board’s Wright Line test, which before General Motors applied only when protected activity and opprobrious conduct were not part of the same event that was subject to employer discipline.62
1. Applying Atlantic Steel’s Workplace Test
Before being overturned in the Board’s General Motors decision,63 Atlantic Steel was the test for determining whether an employee’s workplace activity was protected based on his simultaneous, opprobrious conduct.64 The test considered: (1) the discussion’s place, (2) the discussion’s subject matter, (3) the outburst’s nature, and (4) whether the employer provoked the outburst by committing a ULP.65 The Board never formulated specific weights for any of the individual factors.66
The ALJ in General Motors decided that the charging party—Robinson—was engaged in protected activity during three workplace incidents, and applied Atlantic Steel’s four-factor test in order to determine if Robinson’s behavior was sufficiently opprobrious to lose the Act’s protection during any of those confrontations.67 Robinson was an African-American union committeeperson and delegate at General Motors’s Kansas City, Kansas automotive assembly facility, where he had worked for over twenty years.68 He brought ULP charges in response to three suspensions.69
Robinson’s first confrontation occurred on the shop floor, when he spoke with a supervisor regarding overtime pay for cross-training.70 In the course of the meeting, the conversation between Robinson and the supervisor became heated, and Robinson told the supervisor to “shove the fuckin’ cross-training up his ass,” which led to a suspension.71 Despite his profane language, the ALJ found Robinson did not lose the Act’s protection, and thus his suspension constituted a ULP.72
All four Atlantic Steel factors weighed in Robinson’s favor relating to the first incident.73 Even though the confrontation happened on the shop floor, the place of confrontation factor was in Robinson’s favor: the only witnesses were management officials, and he did not disrupt the employer’s operations.74 The subject matter factor was also in Robinson’s favor, since the conversation related to overtime pay that he believed was mandated by the CBA.75 The nature-of-the-outburst factor also weighed in his favor because his profanity did not rise to the level of a threat, nor did he otherwise physically threaten anyone.76 Finally, the fourth factor—provocation by a ULP—was in Robinson’s favor, given that he honestly believed there was an understanding that overtime pay was agreed upon for cross-training, and thus the supervisor’s refusal to grant overtime would have been a ULP.77
In relation to the second incident, two Atlantic Steel factors weighed against Robinson, including the nature-of-the-outburst factor, which weighed against him “moderately,” and thus he lost the Act’s protection and was legally suspended.78 This incident occurred during a closed-door meeting over subcontracting, during which Robinson persistently and loudly repeated questions regarding certain cost figures.79 After being asked to stop talking so loudly and to wait for the information later, Robinson began speaking in a “slave-like vernacular” and asked a manager if he wanted him to behave like “a good black man.”80 The ALJ determined the place of confrontation factor weighed in Robinson’s favor because it was a closed-door meeting with management, and the subject matter factor also weighed in his favor because the meeting concerned terms and conditions of employment.81 However, the nature-of-the-outburst factor weighed against Robinson based on the ALJ’s conclusion that his slave caricature was solely a personal attack against one of the management officials at the meeting.82 Finally, Robinson was not provoked by a ULP given that the management representatives simply asked him to narrow his information request and told him he would receive information later.83
Two Atlantic Steel factors also weighed against Robinson in connection with the third incident, including the nature-of-the-outburst factor which weighed “heavily” against him, meaning he again lost the Act’s protection.84 This incident occurred during another meeting with management, this time about shift changes at the facility.85 Robinson took exception to something a manager present at the meeting said, responding he would “mess” him up, and after that Robinson played loud music on his phone during the remaining portions of the meeting.86 On his way out of the meeting, Robinson directed profanities at those who were still inside.87 The fact that the incident again occurred in a closed-door meeting put the place of confrontation factor in Robinson’s favor, and the subject matter factor was also in his favor because the meeting was called for discussing terms related to the CBA.88 However, the combination of Robinson remarking about “messing” up a manager, playing loud music, and using profane language set the nature-of-the-outburst factor against him; nor was there ULP evidence, setting the provocation factor against him.89 Ultimately, the ALJ ordered General Motors to make Robinson whole for any losses he suffered from his first suspension, but not for the other two.90
C. The Other Two Setting-Specific Standards
Although the ALJ who made the decision under review in General Motors only applied Atlantic Steel factors, the General Motors Board considered Pier Sixty and Clear Pine Mouldings alongside Atlantic Steel in its analysis.91 While Atlantic Steel was characterized as the workplace discussion standard, Pier Sixty and Clear Pine Mouldings were described as the social media and picket line activity tests, respectively.92
1. Pier Sixty: The Social Media Standard
In Pier Sixty, the Board approved a then-new social media test which the ALJ had applied to an employee’s profane Facebook post.93 The charging party—Perez—was a server for Pier Sixty, a catering service company located in Manhattan.94 The company’s employees were in the process of a union campaign, and the election vote was scheduled for the day after the incidents involving Perez occurred.95 While serving drinks at a fundraiser, Assistant Director Bob McSweeney admonished Perez and some coworkers to stop talking and keep their eyes on the customers.96 Later the same night, McSweeney used a raised tone to order Perez and others to clear the customers’ plates, and repeated a similar order a few moments later in a similar tone.97
Apparently unhappy with McSweeney’s behavior, Perez complained to the head of the union organizing campaign, then took a break.98 When alone and waiting outside of the event space, Perez accessed Facebook from his cell phone and on his personal page posted a profane message directed at McSweeney that included a reference to the union election.99 The post was only visible to his Facebook friends, which included several coworkers.100 Perez deleted the post three days later, but not before one of Pier Sixty’s managers saw it and notified human resources.101 Pier Sixty later discharged Perez, saying that his Facebook post violated its policies.102 However, since the post included an explicit reference to the union election, Perez charged that his termination constituted retaliation for his online protected activity.103 For the Board, Perez’s post was clearly protected activity: it came in response to alleged workplace mistreatment and it indicated that the upcoming union election was a way of improving working life at Pier Sixty.104 The Board was then left to evaluate whether Perez’s online profanity was sufficiently opprobrious to lose the Act’s protection.105
Rather than applying Atlantic Steel’s four-factor test, however, the Board approved the ALJ’s new nine-factor totality of the circumstances test.106 According to the Board, Atlantic Steel was the wrong test because the post was intended for other employees in a nonwork setting—Facebook—and did not arise in a conversation with management.107 The test’s nine factors were: (1) whether the record showed evidence of employer anti-union hostility; (2) whether the employer provoked the conduct; (3) whether the online conduct was impulsive or deliberate; (4) the post’s location; (5) the post’s subject matter; (6) the post’s nature; (7) how the employer treated otherwise similar, profane language; (8) whether the employer specifically prohibited the relevant profane language; and (9) whether the discipline was an incongruent response when compared with responses to similar employee behavior.108 Like the Atlantic Steel test, no specific weight was assigned to any factors.109
The Board found that all nine factors weighed in Perez’s favor, and thus his discharge violated his Section 7 rights.110 The first factor weighed against the employer because the record showed Pier Sixty had disparately applied a “no talk” workplace rule leading up to the union election in an apparent attempt to prevent union discussion.111 Regarding the second factor, the evidence showed that Perez posted the message in direct response to McSweeney’s workplace behavior, while the third also weighed in his favor because the post appeared to be an impulsive expression.112 Factors four and five weighed in Perez’s favor given that he posted the comment while on break and outside of the employer’s facility, and that his online comments in no way affected the employer’s operations at the time.113 Factor six weighed in Perez’s favor because evidence showed profanity was tolerated at the workplace, and his references to McSweeney’s family did not constitute opprobrious conduct pursuant to factor seven.114 Factor eight supported Perez because Pier Sixty’s policies did not generally prohibit offensive language.115 Finally, there was no evidence that Pier Sixty ever discharged another employee for using offensive language, putting factor nine on his side.116 Thus, the Board ordered Pier Sixty to reinstate Perez and compensate him for any lost backpay.117
2. Clear Pine Mouldings: Confrontations on the Picket Line
Clear Pine Mouldings addressed a third scenario: picket line misconduct.118 Picketing is explicitly protected by the Act.119 And given that the picket line is a clear point of struggle and contention during a labor dispute, it is not surprising that, in efforts to ensure picketing was in fact protected, the Board’s picket line standard for opprobrious conduct was especially lenient.120 Only behavior that “reasonably tend[ed] to coerce or intimidate” other employees lost the Act’s protections, meaning anything short of threatening or violent behavior would likely be considered protected.121 As a result, the Board had historically found that what in any other context would be seen as extraordinarily reprehensible conduct was actually shielded on the picket line,122 prompting many to criticize the Board’s approach as enabling hateful behavior.123
One of the more recent cases that drew negative attention to the Board’s Clear Pine Mouldings standard was Cooper Tire.124 The charging party in the case was Runion, who was part of a union that was being locked out of work in the midst of collective bargaining negotiations.125 The employer had hired replacement workers, many of whom were African-American.126 One day, as the replacement workers were exiting the worksite in employer-provided vans, Runion and a large group of union members were present and picketing.127 As the replacement workers passed by, Runion made racist comments that were captured on the employer’s security tapes.128 After reviewing the tapes, the employer terminated him for the comments.129
Applying Clear Pine Mouldings’s picketing standard, the ALJ ruled that Runion’s comments could not reasonably be seen as coercing the replacement employees, and thus he did not lose the Act’s protection.130 Although the statements were racist and offensive, according to the ALJ, they did not contain threats, they were not spoken in connection with any acts of physical intimidation, and they did not increase the likelihood of imminent violence.131 Based on this determination, the employer committed a ULP when it discharged Runion because of his comments, and the ALJ ordered he be reinstated.132 The Board later affirmed the ALJ’s findings, as did the Eighth Circuit Court of Appeals.133
D. The General Motors Board Decision: Ending Setting-Specific Standards
The General Motors Board not only overturned Atlantic Steel—the setting-specific standard applied to Robinson’s conduct by the ALJ134—but also announced the end of Pier Sixty, Clear Pine Mouldings, and setting-specific standards for abusive employee conduct generally.135 The Board clarified that its decision applied to “[a]busive speech and conduct,” opting for “abusive” over “opprobrious,” the latter of which was often a term that the Board had used when referring to misconduct that could cause Section 7 activity to lose protection.136 While the Board did not closely define “abusive conduct,” it cited “profane ad hominem attack[s]” and “racial slur[s]” as examples.137
The Board gave several reasons for its decision, starting with fairness and predictability.138 According to the Board, past rulings showed that Atlantic Steel’s multifactor test was applied inconsistently, and this inconsistency was caused by its unweighted factors.139 Different ALJs accorded varying significance to the test’s factors based on the case at hand, supposedly leaving no possible way to review whether the factors were correctly applied.140 Moreover, Atlantic Steel’s second factor—discussion subject matter—always weighed in the employee’s favor, since by necessity the test only applied when what would otherwise be protected activity was implicated.141 For the Board, having a factor that always leaned in the employee’s favor was unfair.142 Although the Board dedicated much less space to reviewing Pier Sixty than Atlantic Steel, the same general analysis led to the conclusion that the former was perhaps even worse: if four unweighted factors created unpredictable and unfair outcomes, Pier Sixty’s nine unweighted factors went further in the wrong direction.143
Second, the Board claimed that its setting-specific standards were permitting abusive employee conduct, sometimes in violation of workplace antidiscrimination laws such as Title VII.144 This section of the Board’s analysis focused in particular on cases decided under Clear Pine Mouldings’s reasonably tending to coerce standard for picket line behavior.145 For the Board, the idea that employees needed additional “leeway” in some instances in order to make Section 7 protections meaningful had become stretched too far, and as a result, was actually preventing employers from maintaining respectful and orderly working environments.146 Nothing in the Act prevented Section 7 protections from harmoniously coexisting with other workplace protections, but these tests had supposedly created statutory conflicts.147
Finally, the Board argued there was no reason why its Wright Line test should not apply in place of the setting-specific standards.148 The General Motors Board rejected the claims made by past Boards that when abusive conduct occurred in conjunction with protected activity, it was analytically inseparable.149 According to the General Motors Board, abusive conduct and protected activity were indeed distinguishable when they occurred as part of the same interaction. Thus, there was no reason to apply a different dual motive test from Wright Line in such instances, especially since those other tests were unpredictable and facilitated abusive conduct.150
By eliminating all setting-specific exceptions to Wright Line, the Board made Wright Line the universal standard for evaluating abusive behavior when the abusive conduct formed the same course of conduct as protected activity.151 However, in a footnote related to Pier Sixty and social media posts, the Board clarified that its “decision only addresses abusive conduct, [and] precedent on disparagement or disloyalty is beyond its scope.”152 For reasons addressed later, this language limits General Motors’s holding less than it may seem.153
E. Applying Wright Line to All Dual Motive Analyses
Wright Line is the traditional test for determining employer liability in dual motive ULP charges,154 and following General Motors, it is now the only test when considering abusive conduct.155 The basic issue Wright Line tries resolving is the same question that the setting-specific standards addressed: Did the employer illegally retaliate against a worker for engaging in protected activity, or did the employer discipline the worker for legitimate reasons?156 However, Wright Line takes a rather different approach from the multifactor test in Atlantic Steel, the nine-factor totality of the circumstances test in Pier Sixty, or the coercion standard in Clear Pine Mouldings.157
Those differences were based on one main conceptual distinction between Wright Line and the setting-specific standards: the latter only applied when it was clear that the employer’s retaliation came in response to protected activity, hence the need to decide if the activity was sufficiently opprobrious to lose protection.158 In other words, it was essentially presumed that the protected activity had a relationship to the employer’s disciplinary action because such situations made it too risky to try to discern whether the employer was illegally punishing protected activity or only permissibly disciplining misconduct.159 In contrast, Wright Line was exclusively used when the opprobrious conduct and protected activity were somehow separated in time or place.160 Thus, the Wright Line test focuses on whether protected activity was truly the cause of the employer’s disciplinary actions, not if the employee’s existing protections were lost.161
Under Wright Line, an employee who brings a ULP charge after being disciplined must show that her protected activity was a “motivating factor” in the employer’s response, and that she would not have been disciplined so severely absent her protected activity.162 To make a prima facie showing that illegal animus was a “motivating factor” in the disciplinary action,163 there are three necessary elements: (1) the employee was engaged in protected activity; (2) the employer knew about this activity; and (3) the employer disciplined the employee in retaliation for engaging in the activity.164 The third Wright Line prima facie element demands that the General Counsel present evidence that the employer harbored anti-union animus.165
Once the General Counsel presents a prima facie claim, the burden of proof shifts to the employer.166 The case will ultimately be decided based on the preponderance of the evidence regarding the employer’s motivation, so in order to triumph, the employer must provide evidence that convinces the trier of fact that the General Counsel cannot meet her burden.167 Thus, the employer need not prove that its explanation was legitimate; rather, it must merely prevent the General Counsel from persuading the trier of fact that the real disciplinary motive was illegal animus.168
Reviewing the facts of the case in Wright Line is helpful for distinguishing its test from the setting-specific analyses. The charging party in Wright Line was Lamoureux, a shop inspector.169 Lamoureux had been active in two different unsuccessful organizing campaigns, and the employer knew about his involvement.170 The events leading to his discharge occurred about two months after the most recent union vote, and started with one of Lamoureux’s supervisors noticing him entering the bathroom with a newspaper in hand.171 After seeing him outside the bathroom, the supervisor waited by Lamoureux’s departments, noting when he returned thirty-five minutes later.172
The supervisor did not say anything to Lamoureux nor attempt to locate him over that time period, despite knowing that Lamoureux’s job responsibilities often took him away from his departments.173 The next day, the supervisor checked Lamoureux’s Daily Activity Sheet and found that Lamoureux had claimed he was making department inspections over the time period when he was away.174 The supervisor brought the discrepancy to management officials, and Lamoureux was thereafter terminated.175
The First Circuit affirmed that Lamoureux’s termination was a ULP.176 The Board had claimed Lamoureux was truly terminated in retaliation for his previous organizing activity, whereas the employer claimed it terminated him for falsifying the time sheet.177 The court reviewed whether it was the case that but-for Lamoureux’s protected activity, he would not have been discharged, and found the Board’s decision was supported by a preponderance of the evidence.178 The record clearly showed that the employer knew about Lamoureux’s organizing activities and waged a “hostile” anti-union campaign.179 In addition, the fact that management was closely monitoring Lamoureux’s performance but never confronted him about the sheet before discharging him suggested they were actively looking for an excuse to do so.180 Moreover, inspection timing bore little operational significance as long as the tasks were accomplished.181 Finally, the employer had previously treated other employees who committed similar falsifications much more leniently.182
As in Wright Line itself, disciplinary record disparities often constitute important evidence in dual motive Wright Line analyses.183 Other discriminatory evidence may come from the action’s timing, the existence of other ULPs, employer anti-union statements, and a demonstrably pretextual employer explanation.184 However, animus statements alone are not sufficient evidence that an employer’s action was itself driven by animus.185 In Tschiggfrie Properties, the Board clarified that there must be a “causal relationship” between the expressed animus and the action, meaning, for instance, that general anti-organizing hostility would not provide sufficient evidentiary support for a prima facie claim.186 The General Counsel has the burden of showing a closer link between the animus statement and the disputed action.187
II. Analysis
A. Wright Line Is the Wrong Test When Analyzing Abusive Conduct in the Course of Protected Activity
Although the Board and many legal observers championed the General Motors decision as a victory for “workplace civility” and a means of withdrawing Act protections for troubling speech,188 completely abandoning setting-specific standards was a mistake.189 The Board and federal appellate courts have long understood that protected activity constitutes a struggle between workers and employers, and that by definition, labor battles frequently do not comport with idealized workplace images.190 Some circumstances call for giving workers greater expressive freedom at the employer’s expense, and by ignoring this reality, the Board effectively undermines the Act’s purpose.191 Those circumstances exist when employees simultaneously engage in protected activity and allegedly abusive or opprobrious conduct, instances when the danger that employers may illegally punish Section 7 behavior directly is especially high.192
The analysis regarding Wright Line’s third element—retaliation based on anti-union animus—favors employers in such instances by giving them more authority to define acceptable conduct.193 The third element’s analysis is often comparative: the finder of fact will frequently rely on comparing disciplinary records between the disciplined employee and others in order to determine whether the misconduct truly was the disciplinary motivation.194 This may make sense when the protected activity and abusive conduct are distinct, but this approach is troubling when the misconduct and protected activity formed the same res gestae. Writing in dissent when the Board called for briefing on General Motors, Member McFerran pointed out that changing the setting-specific standards “runs the risk of allowing employers to limit the scope of the Act’s protections through their own, unilaterally imposed definitions of civil workplace behavior.”195
While the setting-specific standards did consider workplace context and policies, they were also informed by Board policies and concerns.196 But now, employers may create draconian civility policies, and as long as they apply those policies evenly, use them to justify disciplining employees who exercise Section 7 rights in ways that may violate such policies.197 The greater cause for concern here, unlike the instances in which Wright Line has always applied, is that when an employer disciplines a worker for misconduct committed in the course of protected activity, the prospect that the employer is truly punishing the worker for engaging in Section 7 activity is especially high.198 There is no clear way of distinguishing protected activity from misconduct and determining which was truly punished in such instances, and other than making conclusory statements that protected activity and abusive conduct in the course of protected activity could in fact be analytically separated after all, the General Motors Board did not explain how it uncovered wisdom that had eluded previous Boards for decades.199
Further, unlike the behavior at issue in Wright Line analyses, there are legitimate reasons why Section 7 activity may violate workplace civility codes. As the Board has long recognized, Section 7 protections “would be meaningless were we not to take into account . . . the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”200 This is precisely the reason why the setting-specific standards were created in the first place, and why an alternative to Wright Line remains necessary when abusive conduct occurs in the course of protected activity.
In apparent recognition of the need for alternatives to Wright Line, some ALJ dispositions have seized on using the Burnup & Sims test since General Motors was decided,201 a test which the General Motors Board expressly left intact202 but which does not ameliorate the issues caused by overruling the setting-specific standards. Under Burnup & Sims, an employer must have an “honest belief” that the alleged misconduct in the course of protected activity occurred in order to discharge a worker for such misconduct.203 If the employer can show its honest belief that the misconduct in the course of protected activity occurred, the burden then falls on the General Counsel to show that it did not actually occur.204 While it is fortunate that this test was not also overturned, it is obvious why Burnup & Sims is not a sufficient alternative for all cases involving misconduct in the course of protected activity. Because the test ultimately boils down to whether the misconduct happened or not, Burnup & Sims is not applicable in any instances in which there is no question that employer-defined misconduct did transpire.205 That means that Wright Line applies instead of Burnup & Sims to everything except that sliver of cases.
A recent First Circuit Court of Appeals case describes other limits to General Motors’s effects on workers, but again, these limits in no way neutralize all of the problems created by the Board’s decision to substitute Wright Line for setting-specific standards. In NLRB v. Maine Coast Regional Health Facilities, the First Circuit recognized that General Motors only applies to cases involving abusive conduct.206 Citing a footnote from General Motors, the court wrote that “the Board cabined its holding to cases involving abusive conduct, specifically exempting mere disparagement or disloyalty.”207 While this was relevant to the facts in Maine Coast since that case involved third-party communications,208 this claim about General Motors appears to apply only to cases concerning third-party communications. The language from General Motors that was cited by Maine Coast related to third-party communications in the context of social media posts.209 And further, General Motors exclusively cited decisions involving third-party communications as those which had not been affected.210 Thus, when a worker’s disloyalty in the form of third-party communications is at issue an entirely different set of precedents from Wright Line or the setting-specific standards governs,211 but any misconduct that is abusive or that does not take the form of third-party communications seems that it should be governed by General Motors in dual motive cases. This means that Wright Line is the relevant standard in most dual motive cases.
B. The Setting-Specific Standards Were Deeply Flawed
Substituting Wright Line for the setting-specific standards unacceptably weakens Section 7 protections, but the General Motors Board made credible points regarding the standards’ problems with permissiveness and consistency.212 First, the Clear Pine Mouldings picket line standard protected horribly abusive conduct against coworkers, including vilely racist and sexist behavior.213 Based on this history, there seems little reason to believe that the standard can exist in harmony with Title VII and other antidiscrimination laws, thus putting labor law at odds with other vital workplace protections and tarnishing abused workers’ views of the Board and organized labor more generally.214 There is no persuasive reason to retain any of the Clear Pine Mouldings standard.
As the oldest of the three tests and the one which the General Motors Board could not associate with protecting the most troubling forms of abusive conduct, the Atlantic Steel standard is the least objectionable.215 Even so, Atlantic Steel contained significant flaws. As General Motors pointed out, Atlantic Steel’s unweighted factors gave fact finders wide discretion to place more or less emphasis on certain factors in a given decision.216 As a result, similar behavior would be found protected in one instance and to have lost protection in another.217 That the second factor—subject matter of the discussion—was redundant also invited ALJs to accord varying degrees of significance based on preference.218
There are also problems with reviving Atlantic Steel that extend beyond its individual flaws. Reverting to such a recently disavowed standard will raise the unwelcome prospect that Boards will continue flipping back and forth between positions based on partisan leanings,219 a problem the Board has encountered in other areas of labor law.220 Establishing a new standard that incorporates General Motors’s criticisms may prevent this from happening and from entrenching uncertainty regarding abusive conduct standards.
Further, Pier Sixty’s nine-factor totality of the circumstances test presents even greater concerns around consistency and predictability than Atlantic Steel, concerns the General Motors Board pointed out were shared by the Second Circuit Court of Appeals.221 The more factors in a test, the greater the discretion allowed to fact finders, and the incredible amount of discretion provided in Pier Sixty222, 855 F.3d at 123–24 (stating that the court was “not convinced the amorphous ‘totality of the circumstances’ [Pier Sixty] test” was sufficiently balanced but avoiding ruling on the test itself since it was not challenged by the employer). should again give both employer and employee advocates pause given that political winds and Board staffing can change rather quickly.223 Even assuming a political vacuum, the discretion afforded fact finders when a test includes so many factors means that such a test will be tremendously difficult for the Board to apply consistently and predictably.224
Finally, although the General Motors Board did not mention this specifically, there are good reasons for worker advocates to be wary when it comes to numerous setting-specific tests. It stands to reason that the more varied and complicated tests for discriminatory discipline that exist, the more difficult for relevant parties to conform their behaviors appropriately. Greater confusion and uncertainty are likely to affect the less sophisticated party more severely, which in the Board’s context is typically going to be the employees.225 Thus, reducing the number of protected activity tests need not necessarily reduce workers’ statutory rights; rather, reducing the number of tests may promise robust Section 7 protections and avoid past pitfalls.
III. Proposal
A. A New Test Should Replace Wright Line When Analyzing Abusive Conduct in the Course of Protected Activity
Returning to the Board’s pre–General Motors setting-specific protected activity tests would be a mistake, even if they could be improved by taking measures like adopting EEOC standards. Certainly, the Board should incorporate EEOC standards into all its motive tests as best it can,226 but General Motors struck at Section 7 protections in ways that go beyond balancing the Act with Title VII and other federal antidiscrimination laws.227 The General Motors Board did not clearly define “abusive conduct,” but it seems apparent from its decision that such conduct is not limited to racist, sexist, or otherwise prejudicial behavior.228 Thus, employees who violate workplace policies in the exercise of Section 7 rights are now easier to discipline for exercising those rights, even when their conduct does not implicate Title VII or other workplace protections. This shift means that reversing General Motors and returning to the setting-specific approaches would be more in keeping with Section 7 than current Board law, but even so, reverting to the old standards is not the best solution.
Rather than resuscitate the setting-specific standards, the Board should adopt a new standard that this Note will call the Res Gestae standard. This standard should apply whenever an employer’s discipline was provoked by abusive conduct committed in the course of protected activity, and should apply to the workplace, the Internet, the picket line, and wherever else it is useful.
The Res Gestae standard draws directly from Atlantic Steel and Pier Sixty, but with changes that reflect the criticisms advanced in General Motors. It is a three-factor test that considers: (1) the place of the outburst; (2) the nature of the outburst; and (3) whether the outburst was provoked.229 Unlike the previous tests, these factors are weighted: if two factors favor an employee, then her activity retains protection. However, there should be one exception to this general rule: if the nature of the outburst includes threats of violence or derogatory conduct that significantly implicates other workplace protections—such as Title VII or the Americans with Disabilities Act—the second factor alone can outweigh the other two.
The Res Gestae test provides advantages that are missing from Wright Line and the old setting-specific standards. First, the test recognizes what the Board had long understood before General Motors, which is that the dual motive analysis for workplace discipline should be different regarding misconduct that occurs in the course of protected activity.230 Such an analysis should allow greater expressive freedom to workers in an effort to prevent employers from punishing Section 7 activity, which this test does by drawing from previous tests that were crafted with that express goal. Moreover, the familiar language in the test should prove easy for ALJs to apply, even if the test is in other ways new.
Second, this test incorporates responses to the more persuasive criticisms proffered by General Motors. In order to allow for greater consistency, there are only three factors in the Res Gestae test, and they are weighted. Further, unlike Atlantic Steel and Pier Sixty, the Res Gestae test does not include the subject matter factor, which as the General Motors Board pointed out, is redundant when considering simultaneous misconduct and protected activity.231 For those who may worry that this change makes the test less protective for workers, the third factor in the Res Gestae test considers simply whether the worker was provoked, which is a lower standard than the similar factor in Atlantic Steel, which asks whether the worker was provoked by a ULP.232 Thus, workers who respond to objectionable conduct by management in kind have potentially more leeway under this factor in the Res Gestae test, same as how the worker in Pier Sixty was considered provoked by “disrespectful” language from his manager even though such language did not constitute a ULP.233
Also, placing special weight and emphasis on the nature-of-the-outburst factor should help prevent the Board from protecting the hideous, racist conduct that the previous paradigm allowed while still granting more expressive freedom than Wright Line. To be clear, the second factor’s focus should be whether the misconduct in the course of protected activity constituted violent threats or implicated other antidiscrimination protections, not whether it violated some broad notion of workplace “civility,” the latter being an approach that would necessarily undercut vital Section 7 rights without sufficient justification.234
Stating when precisely a worker’s threatening or discriminatory conduct is so abusive that she loses all protection based on the second factor alone will need to be developed over the course of numerous decisions, but greater focus on other antidiscrimination laws is a place to start. In recognition of the incredible array of fact patterns that the Board encounters, it seems wise to avoid being more prescriptive regarding this factor’s analysis.235 However, at least two points should impart confidence that under Res Gestae the Board will not return to protecting hateful conduct: first, proposals exist for incorporating Title VII into § 8(a)(3) analyses, and there is no clear reason why those could not be adapted to the Res Gestae standard;236 and second, the Res Gestae standard does not draw whatsoever from Clear Pine Mouldings, the setting-specific standard that had shielded the most despicable behavior.237
Third, reducing the number of tests would provide greater clarity for employees, unions, and employers.238 The Res Gestae standard can accommodate the picket line, social media, and any other currently imaginable work-related setting while still safeguarding Section 7 and other workplace rights. Thus, the Res Gestae standard can improve clarity without sacrificing necessary protections.
B. Applying the Res Gestae Standard to the Workplace
Since the Res Gestae test’s factors are largely modified versions of the Atlantic Steel factors, applying this test to the workplace should be relatively straightforward. Two examples from the ALJ’s General Motors decision show when it may lead to similar or different outcomes from Atlantic Steel.239 Like under Atlantic Steel, the Res Gestae test would have found that Robinson’s conduct during the first encounter was protected, and thus his discipline would still constitute a ULP according to the Res Gestae standard. However, the third incident’s analysis may have yielded a different result from Atlantic Steel depending on some unclear details.
In the first incident, Robinson’s abusive conduct occurred in the course of protected activity—discussing a possible CBA violation—and so the Res Gestae test would clearly apply.240 In that incident, Robinson was speaking with a coworker in a place with few witnesses and he did not disrupt workplace operations, putting factor one, location, in his favor.241 Second, Robinson never used language that implicated other workplace antidiscrimination protections or that constituted a violent threat, meaning that the nature-of-the-outburst factor would have been in his favor.242 Telling a coworker to “shove the fuckin’ cross-training up [his] ass”243 may not have been the friendliest phrasing, but was not enough to weigh the second factor against him. Thus, unlike the Atlantic Steel analysis which always applied all four factors, at this point the Res Gestae analysis would result in a finding that Robinson retained protection because two factors favored protection, including factor two, which is the only individual factor that can outweigh the two others in the Res Gestae test.
However, the third incident’s analysis may have turned out differently than it did under Atlantic Steel, depending on some unclear facts that a record developed with Res Gestae in mind could clarify. The third incident’s location factor would again have favored Robinson because his misconduct occurred during a closed-door meeting.244 Regarding the second factor, the influence of the Res Gestae test’s modified nature-of-the-outburst factor would be unclear. The ALJ determined that the nature of the outburst weighed “heavily” against Robinson under Atlantic Steel because he told a coworker that he would “mess” him up, played music with profane lyrics, and used profanity when he left the meeting.245
Under the Res Gestae test, the threatening language and the music may have set the nature-of-the-outburst factor against Robinson, but likely would not have weighed so heavily that the factor would be dispositive. The ALJ found that the threat was not credible, and there were conflicting accounts regarding what music was played and what its lyrics were.246 Assuming a new record could not clarify what was played and to what extent the music may have implicated other antidiscrimination laws, the test would come down to whether Robinson’s misconduct was provoked.247 Using Atlantic Steel, the ALJ looked to whether Robinson was provoked by a ULP and found he had not been.248 Under the Res Gestae standard, an ALJ would look to whether managers had themselves acted in a manner that may be seen as abusive or disrespectful, even if not in a manner that constituted a ULP.249 Robinson may have been protesting what he believed was racist treatment by a manager, and a new record with the Res Gestae test in mind would perhaps shed light on this, potentially placing the final factor in Robinson’s favor.250 In fact, Robinson later claimed as much about his behavior.251
C. Applying the Res Gestae Standard to the Picket Line
The Res Gestae standard can also apply to the picket line.252 The rebuttable presumption when analyzing abusive picket-line conduct should be that factor one—place—is in the worker’s favor. This presumption recognizes that the picket line is a crucial site in labor struggles that is expressly protected by the Act, and one in which tempers run high.253 Further, workplaces and picket lines are rather different settings, the latter being a site where an employer’s policies should have less effect.254 However, this factor-one presumption could be overcome by presenting evidence regarding where the disputed conduct occurred: a worker chanting with striking coworkers in the office parking lot is picketing, and thus would receive the presumption; a worker who breaks into the employer’s building and smashes desktop computers while picketing happens to be occurring outside would not.
Although the Res Gestae factor-one presumption protects workers on the picket line more strongly than it does workers in the workplace, when picket line speech crosses into racist or sexist abuse or violently threatening behavior, ALJs can dispositively weigh the nature-of-the-outburst factor against the worker. None of the worst incidents involving racist and sexist picket line behavior that were protected by Clear Pine Mouldings—such as in Cooper Tire—would be shielded from employer discipline under the Res Gestae standard,255 and the second factor’s emphasis on attention to other antidiscrimination laws should make such outcomes clear to ALJs. Thus, the Res Gestae standard would forcefully strengthen picket line protections from where they stand post–General Motors without providing the leeway for abusive behavior that existed under Clear Pine Mouldings’s coercion standard.256
D. Applying the Res Gestae Standard to the Internet
Finally, the Res Gestae standard can apply to abusive conduct in the course of protected activity on the Internet. Although the General Motors Board referred to Pier Sixty as a social media standard257 and scholarly attention has often focused on social media specifically in relation to online Section 7 activity,258 there seems no reason to design a standard that only applies to social media instead of the Internet more generally.
The Res Gestae standard’s online application presents a few distinctions from the workplace or the picket line, the most important of which relates to the first factor, place. Online protected activity always implicates at least two places: the physical place where the worker was when accessing the Internet, and the “place” on the Internet where the protected activity occurred. Reasonable minds can differ about which place should receive more focus in a protected activity analysis, and indeed, they have.259 Since there may plausibly be any number of factual scenarios in which the worker’s physical location at the time of her online protected activity may carry greater or lesser significance to an abusive conduct analysis, this Note does not maintain that fact finders should accord a certain amount of weight to either. Rather, the most important point is that by analyzing location in both physical and online platform terms, the Res Gestae standard can apply to protected activity on the Internet.
There are two more relevant distinctions regarding the Res Gestae online activity analysis. One is that unlike the picket line, the Internet is not a site with express Act protections.260 As such, the rebuttable Res Gestae presumption in favor of workers regarding the place factor in a picketing analysis should not apply to online activity. Second, the limits to General Motors are most salient in connection with protected activity on the Internet.261 As stated in General Motors and recognized by the First Circuit in Maine Coast, disparaging or disloyal conduct that takes the form of third-party communications is governed by a different set of precedents.262 Thus, the Res Gestae standard would not apply to online conduct that was disloyal rather than abusive.
Conclusion
The General Motors decision mischaracterized how important it is for a standard that is not Wright Line to govern misconduct in the course of protected activity, a standard that grants sufficient room for workers to exercise their Section 7 rights. But reviving the setting-specific standards would resurrect the complications of having different tests and the defects within each of those individual tests. By instead applying the Res Gestae standard to all instances in which the previous setting-specific standards would have governed, the Board’s Section 7 protections will meet the Act’s goals without replicating such issues.263 Although this proposal cannot possibly remove all partisan influences from the Board, adopting a new test that responds to General Motors’s criticisms may prevent a cycle of setting-specific standard reversals and reaffirmations that leaves parties perpetually uncertain. The end result would be adopting a framework for judging abusive conduct upon which all interested parties should agree.