On May 1, 2023, the National Labor Relations Board issued its decision in Lion Elastomers, 372 NLRB No. 83 (2023), which will make it more challenging for employers to discipline workers who engage in abusive workplace conduct in connection with Section 7 activity under Board law.  The decision overrules General Motors, 369 NLRB No. 127 (2020), which logically and uniformly applied the Board’s traditional Wright Line burden-shifting framework to cases involving employee outbursts.  The Board’s decision reinstates a triad of “setting-specific” tests previously used to determine whether an employee’s opprobrious conduct forfeited the Act’s protection.  

These tests grant employees certain leeway for impulsive behavior while engaged in Section 7 Activity and allow an employer to implement discipline only when the employee’s conduct goes so far afield as to lose the Act’s protection.  However, the test itself varies widely based on the setting:

• Outbursts During Management Discussions – In this context, the Board applies the four-factor Atlantic Steel test to determine whether an employee’s outburst during a conversation with management retains protection.  Atlantic Steel Co., 245 NLRB 814 (1979).  The Board considers, “(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 unfair labor practice.”  Id. at 816.

• Inappropriate Social Media Posts and Coworker Conversations – In these circumstances, the Board applies a totality of the circumstances test, as described in cases such as Desert Springs Hospital Medical Center, 363 NLRB No. 185, slip op. at 1 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB 505, 506 (2015), enfd. 855 F.3d 115 (2d Cir. 2017).  For example, in Pier Sixty, the Board considered factors such as: employer antiunion hostility, provocation, impulsivity, location, subject matter, nature of the post in question, whether the employer maintained specific rules prohibiting the language at issue or otherwise previously deemed it offensive, and whether the discipline issued was typical as compared to similar offenses.  Pier Sixty, LLC, 362 NLRB at 506-507.

• Picket Line Misconduct – The Board reviews picket line misconduct under the Clear Pine Mouldings, Inc., standard which provides that an employee loses the Act’s protection where “the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.”  Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984) (internal citations omitted).

The Lion Elastomers majority opined that the reinstatement was necessary because “[t]he General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers’ rights under the National Labor Relations Act.” 372 NLRB No. 83, slip op. at 8.  In his Dissent, Member Marvin Kaplan defended General Motors, and expressed concern that the “setting specific” standards have been greeted with skepticism by the courts, have previously caused inconsistent caselaw, and will “require employers to continue to employ individuals who have engaged in such abusive conduct any reasonable employer would have terminated them.”  Id. slip op. at 21-22.  He further remarked that under these standards, “if the past is any guide,” the Board will defend otherwise indefensible employee misconduct, including: “profane ad hominem attacks and threats to supervisors in the workplace, posting social media attacks against a manager and his family, shouting racist epithets at other employees, or carrying signs sexually harassing a particular employee.”  Id. slip op. at 21-22 (internal citations removed).

The Board majority states that Lion Elastomers case will be applied retroactively to all pending cases, (Id. slip op. at 17), although we expect that employers will challenge such retroactive application as being inconsistent with due process.  Moving forward, employers should be hyper-vigilant in scrutinizing the contextual facts prior to discipling employees for conduct occurring in the course of other protected activity.  During this analysis, employers also should maintain awareness of their obligations to prevent hostile work environments on the basis of protected traits under federal, state, and local EEO laws, as they may conflict with the NLRB’s standards.  For a discussion of this interplay, see NLRB Loosens Restrictions on Employee Discipline for Abusive Conduct and Speech. Ultimately, we expect that the Board’s standards will lead to more federal court litigation, as employers will be forced to challenge Board rulings that find that seemingly uncontroversial disciplinary decisions are unlawful because of an alleged relation to Section 7 activity. 

Christy Bergstresser also contributed to this article.