In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have engaged in abusive or inappropriate conduct. Robbed of the ability to simply demonstrate any such discipline was not in retaliation for protected conduct. Employers will once again be called upon to grapple with a list of indefinite factors that has oftentimes rendered similar outrageous workplace conduct immune from discipline. 

The GM Decision

As we previously covered, the “Board issued a decision in General Motors, LLC (GM), 369 NLRB No. 127 (2020), holding that certain abusive or inappropriate workplace speech by employees engaged in concerted or union activity (“PCA”) was not protected by Section 7 of the National Labor Relations Act (“NLRA” or “Act”). See Sticks and Stones…The NLRB Rethinks Its Position on Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities. The decision in GM reversed 40 years of Board precedent and emphasized an employer’s motive for taking adverse action, giving employers the ability to discipline workers for engaging in abusive or inappropriate conduct provided the discipline was shown not be in retaliation for protected conduct. The Board in GM said it would now apply its well-worn test, first set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), to cases involving employees who were disciplined for making PCA-related abusive statements. In so doing, the GM Board overruled three separate tests previously used to determine whether workplace speech constituted PCA: (1) the four-factor test set forth in Atlantic Steel, 245 NLRB 814 (1979), which governed employees’ conduct towards management in the workplace by considering (a) the place of the discussion, (b) the subject matter of the discussion, (c) the nature of the employee’s outburst, and (d) whether the outburst was, in any way, provoked by an employer’s unfair labor practice; (2) the totality-of-the-circumstances test, which governed social-media posts and most cases involving conversations among employees in the workplace, announced in Desert Springs Hospital Medical Center, 363 NLRB 1824, 1839 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB No. 59 (2015); and (3) the standard announced in Clear Pine Mouldings, 268 NLRB No. 173 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985), in which the Board considered whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct. 

The Lion II Decision: A Return to Protections for Abusive Workplace Speech

On May 1, 2023, in Lion Elastomers, LLC, 372 NLRB No. 83 (2023), the NLRB overturned GM and once again made it more difficult for employers to discipline employees for abusive or inappropriate workplace speech while engaging in otherwise protected concerted or union activity. Originally, on May 29, 2020, the Board issued its first decision in Lion Elastomers, LLC, 369 NLRB No. 88 (2020), finding that the employer violated Section 8(a)(1) and (3) of the Act by threatening an employee with discharge and by disciplining and ultimately discharging the employee for his conduct at a safety meeting and because he engaged in union activity. In finding the employee did not lose the protection of the Act when he raised concerns about the employees’ working conditions to the employer’s safety manager at a safety meeting, the Board adopted the judge’s application of the four-factor test set forth in Atlantic Steel. The employer filed a petition for review of the Board’s Order with the United States Court of Appeals for the Fifth Circuit, and the Board filed a cross-application for enforcement of the Order. While the case was pending before the Fifth Circuit, the Board issued its decision in GM, in which it held that it would no longer apply various setting-specific standards to determine whether employers have unlawfully disciplined or discharged employees who allegedly engaged in abusive conduct in connection with activity protected by Section 7 of the Act. The Fifth Circuit duly remanded the matter to the Board in light of GM.

On remand from the Fifth Circuit, the Board affirmed its earlier decision and took the opportunity to restore forty years of precedent by overturning GM and confirming the employer in Lion Elastomers violated the Act. In attempting to “strike a different balance from the General Motors Board between the Section 7 rights of employees and the legitimate interests of employers,” the Board elevated employee rights over employers’ ability to regulate employee speech in the workplace, noting that “[i]f an employer could discharge an employee for giving offense, it would frustrate the Act’s goals—either ‘collective bargaining would cease to be between equals (an employee having no parallel method of retaliation)’ or ‘employees would hesitate ever to participate personally in bargaining negotiations, leaving such matters entirely to their representatives,’” The Board emphasized conduct that occurs in the course of protected activity should be evaluated as part of that activity, not separately or in the context of the ordinary workplace. Acknowledging that misconduct in the course of Section 7 activity is treated differently than misconduct in the ordinary workplace setting that is unrelated to Section 7 activity, the Board further noted that “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses,” serving as a backdrop for the Board’s criticism of the Trump Board’s adoption of the Wright Line test in GM. The Board in Lion Elastomers stated, “the motive-focused Wright Line standard utterly fails to serve the policies of the [NLRA] in the distinct context of misconduct committed during protected activity. It gives too little weight to employees’ statutory rights and too much weight to employers’ interests.” Notably, the Board majority also argued the GM test created more unpredictability for employers, and countered the argument that the setting-specific standards it reanimated generate potential conflicts with Federal antidiscrimination law, stating “[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.” Interwoven throughout the majority opinion in Lion Elastomers is the practical argument that “labor disputes often remain heated affairs” and while employees certainly do not have to engage in abusive behavior to exercise their rights under Section 7, they could and oftentimes do engage in uncivil behavior, citing the steady stream of cases to come before the Board evidencing such conduct as the very point of the Board’s traditional setting-specific standards.

Key Takeaways

The Board’s decision in Lion Elastomers removes the bright line that briefly existed between protected conduct and unprotected PCA-related abusive language and conduct. This undoubtedly will make it more difficult for an employer to balance its obligations under anti-harassment and anti-bullying laws and the NLRA. As dissenting Board Member Kaplan concluded, “[i]f the past is any guide, the Board will now protect employees who engage in a full range of indefensible misconduct, such as 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.” Because employers are potentially stymied in responding to most employee’s PCA-related abusive language, employers may now be faced with a legally-undesirable dilemma – violate the NLRA, or be subject to liability under anti-harassment and anti-bullying laws for failing to take necessary action to prevent one employee’s abusive language and/or conduct towards other employees.

Despite the potential risk of not disciplining an employee engaging in abusive speech, employers should be cautious in disciplining or terminating employees who use abusive or inappropriate language where the employee is also engaged in PCA. Even with a valid, lawful basis to take adverse action, an employer may be found to be violating the NLRA if the disciplined employee was engaging in PCA.