## Facts

- Charles Robinson worked for General Motors, LLC (GM) as a full-time union representative at GM’s facility.
- In 2017, GM suspended Robinson three times after separate incidents involving offensive conduct while Robinson was engaged in union-related or other Section 7 activity.
- First incident: Robinson yelled and cursed at a manager during a conversation about employee training.
- Second incident: Robinson made racially offensive comments during a meeting attended by managers and other union representatives.
- Third incident: Robinson played sexually explicit and racially offensive music loudly during a meeting attended by managers and other union representatives.
- The NLRB General Counsel issued a complaint alleging GM violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by disciplining Robinson for protected concerted activity under Section 7.
- An administrative law judge (ALJ) applied the Atlantic Steel four-factor test for workplace outbursts and found the first incident remained protected, but the second and third incidents were abusive conduct outside NLRA protection; the ALJ therefore found a violation only as to the first suspension.
- GM sought Board review of the ALJ’s finding regarding the first suspension.
- While the case was pending, the Board invited amicus briefs on whether it should keep using Atlantic Steel and other context-based standards (including tests used for picket-line conduct and social-media/coworker speech) or instead use the Wright Line burden-shifting framework.

## Issues

1. What legal standard should govern when an employer disciplines an employee for abusive or offensive conduct that occurs during otherwise protected activity under Section 7?
2. Should the Board continue using context-based “loss of protection” tests (such as Atlantic Steel and related standards), or instead apply the Wright Line motivating-factor and same-action framework used in other discriminatory discipline cases?
3. Should any new standard apply retroactively to pending cases, including Robinson’s suspensions?

## Decision

- The Board held that the Wright Line framework governs cases in which an employer disciplines or discharges an employee for abusive or offensive conduct that occurs in connection with Section 7 activity.
- The Board replaced prior context-based standards (including Atlantic Steel and other setting-dependent approaches) with a single Wright Line analysis to be used regardless of where the conduct occurs (workplace meetings, social media, or the picket line).
- Under Wright Line, the General Counsel must prove Section 7 activity was a motivating factor in the discipline; if that is shown, the employer avoids liability by proving it would have taken the same action even absent the protected activity.
- The Board reasoned that protected concerted activity and abusive conduct are separable for analytical purposes, so the discipline question should be treated as a mixed-motive dispute like other Section 8(a)(1) and 8(a)(3) cases.
- The Board applied the new standard retroactively to pending cases.
- The Board vacated the ALJ’s Atlantic Steel analysis in Robinson’s case and remanded for evaluation of the suspensions under Wright Line.

## Legal Principles

- When discipline is imposed for abusive or offensive conduct that occurs during Section 7 activity, the Board applies Wright Line rather than a context-based “loss of protection” test.
- Wright Line requires: (1) the General Counsel to show protected activity was a motivating factor in the employer’s action; and (2) the employer, if that showing is made, to prove it would have taken the same action even without the protected activity.
- The same Wright Line standard applies across contexts; the analysis does not change based on whether the conduct occurred in a meeting with management, online, or on a picket line.
- Abusive conduct (including profane personal attacks, racial slurs, or sexually offensive behavior) is not treated as automatically protected merely because it occurs alongside or during protected concerted activity.
- A unified standard aims to reduce inconsistent outcomes produced by multiple factored, setting-dependent tests and to allow employers to enforce lawful workplace rules against harassment and discrimination while still forbidding discipline motivated by protected activity.
- The Board may apply a newly announced standard retroactively to pending matters, including cases on review and remand.

## Conclusion

General Motors, LLC, 369 N.L.R.B. No. 127 (2020) replaced the Board’s prior context-based standards for abusive conduct during protected activity with the Wright Line burden-shifting framework, applied that standard retroactively, and remanded Robinson’s suspensions for reconsideration under the motivating-factor and same-action test.
