The decisions of the National Labor Relations Board (NLRB) have always been subject to change—sometimes shifting in a pro-employer direction, and sometimes prolabor—depending on the political composition of its members. Once again, the Board has shifted its position on an important topic: Just how far can an employer go when disciplining employees for misconduct—including hostile, abusive, or offensive behavior—when they are engaged in protected concerted activity?
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On May 1, 2023, the NLRB issued its opinion in Lion Elastomers LLC, which reestablished the standards for disciplining or discharging employees for misconduct that occurs when their activity is otherwise protected by the National Labor Relations Act (NLRA). In doing so, a split Board overturned its opinion in General Motors LLC, which was issued in 2020.
In General Motors LLC, the NLRB announced it would apply its 1980 Wright Line burden-shifting framework to cases involving abusive conduct in connection with activity protected by Section 7 of the Act.
In that opinion, the Board concluded the former standards produced inequitable and unreliable results that “were in tension with antidiscrimination laws and departed from the Board’s mission.” Now, less than three years later, the NLRB has reversed course entirely.
The NLRB has long held that an employer violates the NLRA by disciplining an employee based on abusive conduct that is intertwined with protected activity unless evidence shows the misconduct was severe enough to lose the NLRA’s protection.
The justification for such a stance has been that employees are permitted “some leeway for impulsive behavior when engaged in concerted activity,” and the accommodation of such behavior is “balanced against an employer’s right to maintain order and respect” in the workplace.
Things Are About to Get More Complicated
With its Lion Elastomers LLC decision, the Board has abandoned the more simplistic, one-size-fits-all Wright Line test of when conduct exceeds the protections of the NLRA for a more nuanced framework. The resurrected standards are as follows:
- The 1979 Atlantic Steel test, which governsemployees’ conduct towards management in the workplace;
- The totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and
- The 1978 Clear Pine Mouldings standard, which governs picket-line conduct.
Under the Atlantic Steel test, the Board applies four 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 unfair labor practice.”
On the other hand, the totality-of-the-circumstances test doesn’t have consistent factors. Rather, it merely dictates that the Board is to review all of the relevant circumstances.
Finally, the Clear Pine Mouldings test asks whether “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.” Lion Elastomers LLC, 372 NLRB No. 83 (May 1, 2023).
Important Takeaways for Employers
The return to these standards reintroduces a level of complexity to the legal analysis. The underlying lesson remains the same, however: You should take care before issuing discipline or terminating employment based on misconduct when it is tied to protected activity under the NLRA.
The Lion Elastomers LLC decision also highlights the diminishing value of precedent. With the periodic political turnover of Board members, you shouldn’t assume a specific area of labor law is settled for decades, or even years, to come even in the wake of a recent decision.
Harrison Kosmider is an attorney in the Tulsa, Oklahoma, office of McAfee & Taft. He may be contacted at harrison.kosmider@mcafeetaft.com.