Here’s the situation: You own a small business that employs 15 employees. You do your best to provide good pay and benefits, but, like many companies, your business has been adversely impacted by lingering effects of the pandemic and the overall sluggishness of the economy. You call an all-hands meeting and reluctantly inform your employees that you need to cut back, so, regrettably, there won’t be any wage or benefit increases for 2023.

Employees are predictably unhappy, but one employee takes the news harder than the others and starts screaming at you a steady stream of profanity, insulting you as a business owner, calling you terrible names tinged with sexist and racist overtones, and saying that you have more than enough money to pay all the employees – you’re just greedy.

Although you certainly didn’t expect employees to be happy, you are shocked by the employee’s aggressive, profane, ad hominem attack in front of all your employees. You can’t see how you could continue to employ someone who has been so disrespectful and hostile to you. So, you respond to the employee: “If that’s the way you feel, you don’t need to be here anymore. Get your stuff and get out of here. You’re fired.”

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Under the rational standard established by the National Labor Relations Board (NLRB or Board) in 2020, you as the employer likely would have been well within your rights to terminate the employee for obvious misconduct, even though it occurred in the context of activity that might otherwise be protected by the National Labor Relations Act (NLRA or the Act), the federal law that prohibits adverse action against employees who engage in certain concerted activities, such as discussing their wages and benefits. But it’s not 2020, and the current Democrat-majority NLRB has yet again elevated employee protections, this time even in extreme situations like those in the situation described above, over employers’ right not to be subjected to what appear by all measures to be indefensible instances of insubordinate conduct by employees.

In Lion Elastomers LLC, 372 NLRB No. 83 (2023), the NLRB tossed aside a different Board majority’s decision in General Motors LLC, 369 NLRB No. 127 (2020), and in its place resurrected prior decisions that held that the Act may protect even offensive, profane, and disrespectful workplace conduct when it occurs in connection with otherwise protected concerted activity. The Board’s May 1, 2023 supplemental decision and order overturned its own precedent – issued just three years ago – supplanting it with an older line of precedent extending the Act’s protection even to “conduct occurring in the course of union activity that an employer might characterize as abusive or uncivil.”

To understand the dizzying effect of the Board’s flip flop, a short history lesson is instructive. In 1946, the Seventh Circuit Court of Appeals (in NLRB v. Illinois Tool Works, 155 F.2d 811 (7th Cir. 1946)), enforced a Board order finding that “animal exuberance” which momentarily exceeds the boundaries of lawful conduct in connection with union activity is permissible, and disciplining an employee for engaging in such conduct may be an unfair labor practice (ULP). Quaint by today’s standard, the conduct at issue in that case was an employee’s publication of a bulletin with the purported pay rates of employees at two competitor employers, the goal being to induce his coworkers to join the union so it may secure better wages for them. The problem, however, was that the employee’s pay data was wrong. When he failed to correct the bulletin, he was laid off for several days until the union corrected the information. Not surprisingly, the misinformation impacted morale at the company, but the Board concluded (and the Seventh Circuit agreed) that the layoff interfered with the employee’s NLRA-protected rights, contrasting the misconduct at issue, which the Board likened to “concerted activities [that] exceed the bounds of lawful conduct in a moment of animal exuberance,” with “those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service.” Id. at 815-16.

Skip ahead to 1979. That year, the Board was asked to consider whether an employer who discharged an employee for calling his supervisor a “lying s.o.b.” and a “m—f—liar” during a discussion about a grievance committed an ULP. Atlantic Steel Company, 245 NLRB 814 (1979). An arbitrator concluded, and the Board agreed, that the employer properly disciplined the employee for his justifiably job-ending outburst, agreeing “that even an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act.” The Board announced a test for deciding whether the employee has crossed that line, requiring a “careful balanc[ing]” of several factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s ULP. The implication of the Atlantic Steel balancing test, however, was that there may be instances when, depending on the context, even racist, sexist, or profane outbursts may be too closely interwoven with protected concerted activity to be the basis for discipline.

Times had changed quite a bit since the “animal exuberance” of the 1940s. So too had the employment law landscape. Whereas (sadly) racially or sexually offensive conduct may not have raised eyebrows as much in the first half of the century, Atlantic Steel followed the adoption of Title VII and other equal employment opportunity (EEO) laws, leaving employers on the horns of a dilemma: discipline employees for offensive outbursts and risk an ULP charge, or endure such conduct and risk claims of harassment and workplace discrimination.

Within the year, however, the Board delivered some good news to employers when it decided Wright Line, 251 NLRB 1083 (1980), a new standard for deciding cases “where employees engage in abusive conduct in connection with Section 7 activity, and the employer asserts it issued discipline because of the abusive conduct.” Under the Wright Line burden-shifting standard, the Board concluded that the NLRB’s General Counsel (GC) has the initial burden of establishing that protected activity was a substantial or motivating factor in the employee’s discipline or discharge. If the GC does so, the employer may then prove it would have taken the same action even in the absence of Section 7 activity. The employer may do so by showing that it disciplines employees consistently for similar workplace misconduct, whether in connection with or unrelated to protected concerted activity.

This test remained essentially consistent for the next forty years. In 2020, the Board had the opportunity to apply the Wright Line test in the specific context of an offensive – and, in fact, racially and sexually explicit – workplace outburst. In General Motors LLC, 369 NLRB No. 127 (2020) (which we reviewed here), an employee and full-time union representative was suspended three times for three separate incidents: yelling and cursing at a manager during a conversation about employee training; making racially offensive comments during a meeting with managers and other union representatives; and playing sexually explicit and racially offensive music loudly during a meeting with managers and other union representatives. The Board applied the Wright Line burden-shifting standard in that case and rejected setting-specific standards for determining whether hostile and abusive conduct is protected. The Board expressly observed that “EEO laws…do not forgive abusive conduct,” even when “it arises from heated feelings about working conditions or because crude language is common in the workplace,” and recognized that setting-specific standards like those previously applied in Atlantic Steel and its progeny are “wholly indifferent to employers’ legal obligation to prevent hostile work environments on the basis of protected traits.”

The problem, however, was that, just two months before the Board decided General Motors, it concluded in an unrelated case that an employer, Lion Elastomers, violated the NLRA by threatening to discharge an employee for less-than-professionally voicing concerns during a safety meeting and later discharging the employee for engaging in union activity. Lion Elastomers LLC, 369 NLRB No. 88 (Lion Elastomers I). Applying the reasoning in Atlantic Steel en route to finding a violation of the Act, the Board analyzed the place of the discussion, the subject matter of the discussion, the nature of the employee’s outburst, and whether the outburst was in any way provoked by an employer’s ULP. Following the Board’s contradictory announcement in General Motors, the Fifth Circuit Court of Appeals – to which Lion Elastomers I had been appealed – remanded the case to the NLRB for reconsideration under the newly-announced General Motors/Wright Line burden-shifting test.

That brings us to the present day. Much has changed since 2020 when Lion Elastomers I and General Motors were decided. Most importantly, the Board now has a very different, very pro-union, pro-employee composition. And thus, it came to pass that on May 1, 2023, the NLRB reversed course yet again in Lion Elastomers LLC II, 372 NLRB No. 83 (2023), not only concluding that the employer committed an ULP for disciplining the employee over his workplace outburst, but also overruling General Motors altogether.

The Board has therefore reverted to pre-General Motors thinking around discipline for employees’ abusive workplace conduct, applying different standards depending on the context in which the outburst takes place in connection with Section 7 activity:

• “Outbursts to management in the workplace” considers the place, subject-matter, nature of employee’s outburst, and whether it was provoked by an ULP, a la Atlantic Steel.

• Social media posts “and most conversations among employees in the workplace” are considered under a “totality of the circumstances” analysis.

• Abusive picket-line conduct takes into account whether non-strikers reasonably would have been coerced or intimidated.

Practically speaking, in deciding Lion Elastomers II, the Board has made it more difficult for employers to discipline or fire workers for offensive, racist, sexist, and other profane language or conduct in the workplace when the offender is arguably engaging in protected concerted activity. Before imposing discipline for offensive conduct, an employer now must consider the misconduct in the context of whether it occurred during or in connection with protected concerted activity. If it has, then the employer must consider what kind of protected concerted activity was taking place to determine which context-specific test applies under the circumstances. In other words, in the Board’s current way of thinking, it is not enough for an employer to consistently apply consequences for profane, racist, sexist, or other types of offensive workplace conduct; it now must apply a hodgepodge of setting-specific standards to determine whether the context of the outburst lends the bad behavior NLRA protection.

So, what of the dilemma employers face in trying to act consistent with employees’ NLRA rights while also protecting employees (and themselves) from harassing workplace conduct? Doesn’t “returning to the setting-specific standards … prevent the Board from accommodating federal antidiscrimination statutes?” The Board poses, and then blithely answers, this very question: “They do not.” If this response seems dismissive, it is. An employee exposed to a patently offensive barrage of racist or sexist outbursts is no less entitled to protection from their hostile work environment simply because the offender was also engaged in protected concerted activity. The Board disregards this conundrum, even reaching back to the 1946 precedent noted above as if to suggest that patently offensive speech is mere “animal exuberance.”

That is not to say that all hope is lost. According to the Board’s Lion Elastemers II opinion, “[i]n determining whether employee misconduct is sufficiently severe to lose the protection of the Act, the Board is free to take into account a possible conflict with another Federal statute, if it were to find that the misconduct otherwise retained the Act’s protection.” Employers are well-advised to exercise caution when implementing discipline, but not to disregard consistency altogether. If past is prologue, employers can assume that this pendulum will again swing in the opposite direction; the only question is when.