General Motors, LLC

Charles Robinson (plaintiff) was employed by General Motors, LLC (defendant) as a full-time union representative. In 2017, General Motors suspended Robinson three times for offensive conduct. In the three separate incidents, Robinson (1) yelled and cursed at a manager during a conversation about employee training, (2) made racially offensive comments during a meeting with managers and other union representatives, and (3) played sexually explicit and racially offensive music loudly during a meeting with managers and other union representatives. In 2018, the National Labor Relations Board’s (NLRB) general counsel—who is independent from the NLRB and prosecutes labor relations cases on behalf of complainants—brought an action on Robinson’s behalf. An administrative-law judge (ALJ) held—based on application of the four-factor test from Atlantic Steel, 245 N.L.R.B. 814 (1979)—that Robinson’s conduct in the first incident was protected concerted activity under § 7 of the National Labor Relations Act (NLRA) but that Robinson’s conduct in the other two incidents was abusive conduct not protected by the NLRA. Therefore, the ALJ held that General Motors had violated § 8 of the NLRA—which prohibits employers from disciplining employees for engaging in protected concerted activity under § 7—only with respect to the first incident. The NLRB subsequently invited amicus curiae briefs to determine whether the NLRB should continue to employ the Atlantic Steel test or a different standard—such as the burden-shifting standard established in Wright Line, 251 N.L.R.B. 1083 (1980)—in situations involving abusive conduct.