On May 1, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision that makes it more difficult for employers to discipline or discharge employees for their offensive or abusive conduct while engaged in activity that is protected by the National Labor Relations Act (“NLRA” or the “Act”).

In Lion Elastomers LLC, 372 NLRB No. 83 (2023), the NLRB overruled General Motors LLC, 369 NLRB No. 127 (2020), and returned to the use of several “setting-specific” tests for evaluating the lawfulness of discipline resulting from employee misconduct occurring in connection with NLRA-protected activity. These tests evaluate whether an employee loses the Act’s protection due to the severity of his or her conduct.

The NLRB majority’s view, as expressed in the Lion Elastomers LLC decision, is that there is a “fundamental difference . .  . between employee misconduct committed during Section 7 activity and misconduct during ordinary work,” and that employees should be permitted leeway for impulsive behavior when engaged in NLRA-protected activity.

The Overruled General Motors Standard

In the NLRB’s General Motors LLC decision, the board held that it would no longer apply certain setting-specific tests to determine whether employers unlawfully disciplined or discharged an employee who engaged in abusive conduct in connection with protected activity. The board instead applied the Wright Line test, which focuses on an employer’s motive for taking action against an employee. Employers could generally meet their burden under this test by showing they would have treated the employee in the same manner based on his or her misconduct regardless of whether the employee was engaging in protected activity.

The Return to Setting-Specific Tests

In Lion Elastomers LLC, the NLRB reversed the General Motors LLC decision and returned to setting-specific tests for evaluating the lawfulness of an employer’s disciplinary action in response to abusive conduct occurring in connection with protected activity. The following tests will now be applied by the board to determine whether abusive conduct is severe enough for an employee to lose protection under the NLRA:

• For employee outbursts towards management in the workplace: the NLRB will apply a four-factor test, considering (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.[1]

• For social-media posts and most cases involving conversations among employees in the workplace: the NLRB will apply the totality-of-the-circumstances test.[2]

• For picket-line conduct: the NLRB will apply the Clear Pine Mouldings test, which considers whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the abusive picket-line conduct.[3]

In light of the Lion Elastomers LLC decision, employers should be mindful that the NLRB will now likely give employees greater leeway for abusive conduct when engaged in NLRA-protected activity. The NLRB’s setting-specific tests may result in unpredictable and inconsistent disciplinary decisions. Employers may also find themselves in a difficult situation when faced with a decision to either discipline an employee for abusive conduct occurring while the employee was engaged in NLRA-protected activity, or to instead ignore that conduct and leave unprofessional, harassing and intimidating conduct unchecked.

[1] See Atlantic Steel Co., 245 NLRB 814 (1979).

[2] See Desert Springs Hospital Medical Center, 363 NLRB 1824 (2016); Pier Sixty, LLC, 362 NLRB 505 (2015).

[3] See Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984).