Wall Street Journal Is Mad at Well-Decided NLRB Case

The General Motors decision was conceptually confused.

Matthew Mimnaugh has a piece at the Wall Street Journal lamenting the fact that the chairwoman of the National Labor Relations Board (NLRB), Lauren McFerran, was recently renominated by President Joe Biden to resume her current position. Mimnaugh’s sole objection to McFerran is that she wrote the Lion Elastomers opinion that resurrected the long-standing Board law governing when protected activity becomes unprotected due to how it is conducted.

One of her decisions is especially troubling. The NLRB now lets unions and their allies attack workers with racist and sexist language, leaving employers powerless to protect employees from discrimination and harassment.

Ms. McFerran gave such rhetoric the green light in May 2023. Her board’s Lion Elastomers decision held that workers generally can’t be disciplined or discharged by employers for misconduct that occurs within activity “protected by the National Labor Relations Act.” What that means in practice is that workers may engage in racist, sexist and profane conduct so long as it occurs under the guise of union activity.

It is certainly amusing to see the WSJ suddenly pretend to care about policing non-PC language when it involves empowering management to fire union activists. But Mimnaugh’s treatment of this topic is also highly misleading.

In 1979, the NLRB issued its Atlantic Steel decision, which established the test for determining when an employee’s otherwise protected speech towards management becomes too extreme to remain protected. This standard considered:

(1) the place of the discussion

(2) the subject matter of the discussion

(3) the nature of the employee’s outburst

(4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

The Altantic Steel test remained in place, unmodified, for 41 years. The Board approvingly cited the decision 46 times during the Reagan administration, 3 times during the Bush Sr. administration, and 39 times during the Bush Jr. administration.

Despite the long bipartisan application of this rule, the Trump Board issued a decision in 2020, General Motors, that replaced the Atlantic Steel test with the Wright Line test that was not actually designed for this particular legal issue.

The Wright Line standard initially was established to deal with scenarios where an employee engaged in protected activity and separately engaged in some kind of workplace misconduct — such as absenteeism, incompetence, or similar — that the employer would normally take action against. In that scenario, if the employer can show that they would have taken the same action against the employee for the misconduct even if they had not separately engaged in protected activity, then they will be deemed to have not violated the NLRA.

There is a very important conceptual difference between the Wright Line scenario and the Atlantic Steel scenario. In the Wright Line scenario, we are analyzing two actions: one action being protected activity and the other action being workplace misconduct. In the Atlantic Steel scenario, we are analyzing one action and asking ourselves whether that particular action should be considered protected activity or not.

In the Wright Line scenario, we look to the employer’s general policies and practices to decide, not whether an employee’s activity is protected, but rather whether the employer is being honest when it says that it fired the employee for separate workplace misconduct.

When we apply the Wright Line test to the Atlantic Steel scenario, as the General Motors case does, we end up looking to the employer’s general policies and practices to determine whether an employee’s activity is itself protected. This is clearly a mistake. Whether an activity is protected or not should not vary employer to employer based on the employer’s own policies and practices. It is something that the government should be deciding in its enforcement of the NLRA.

If conservatives don’t like the four-factor Atlantic Steel test because they think it permits too much foul language in the course of engaging in protected activity, then they should fashion a stricter test, not declare that employers are empowered to determine how protected activity must be conducted.

Ideally, of course, conservatives would just chill out on this particular area of Board law, something they had no problem with through three different Republican presidencies. Obviously, the business wing of the conservative movement wants to maximally empower management to fire workers, especially workers who engage in organizing. But there is also a more culturally-focused wing of the movement that is concerned about the way in which corporate management uses its hiring and firing power to punish people who express conservative views or otherwise cut against the evolving DEI consensus. Decisions like Atlantic Steel and Lion Elastomers potentially offers some protection from that latter concern.