NLRB Returns to Decades-Old Standards for Assessing Employee Misconduct at Work

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The National Labor Relations Board has reverted to decades-old standards for assessing whether employee misconduct during the course of protected activity should be protected under federal labor law. The Board’s move will make it more difficult for employers to discipline employees for bad behavior at work if the behavior occurs in the context of discussions or protests over working conditions. The decision applies to private sector employers in union and non-unionized work environments.

In Lion Elastomers LLC, 372 NLRB No. 83, the Board affirmed three cases establishing standards to evaluate employee outbursts during the course of Section 7 activity – that is, activity related to working conditions or supporting a union, which is protected by the National Labor Relations Act. Historically, these standards have permitted employees considerable leeway to engage in impulsive – and at times explosive – behavior in the exercise of their Section 7 rights.

The Board’s decision applies retroactively to all pending cases. It overturns a 2020 case, General Motors LLC, 369 NLRB No. 127, which was decided by a then-Republican-controlled board.

Return to Setting-Specific Standard

Lion Elastomers reestablishes Board precedent in three seminal cases, with the applicable standard depending on the context or setting in which the conduct occurs:

  1. Atlantic Steel, 245 NLRB 814 (1979): Standard applied to evaluate whether an employee loses the protections of the Act during a heated discussion with a supervisor. Under Atlantic Steel, the Board will consider four factors: (i) the place of the discussion; (ii) the subject matter of the discussion; (iii) the nature of the employee’s outburst; and (iv) whether the outburst was provoked in any way by the employer’s unfair labor practice.
  2. Pier Sixty, LLC, 362 NLRB 505 (2015): Standard applied to evaluate whether an employee loses the protections of the Act for statements posted on social media or made to other employees. The Board will consider the “totality of the circumstances” in deciding if the employee lost the protections of the Act.
  3. Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984): Standard applied to evaluate whether an employee loses the protections of the Act for conduct on a picket line. Employees will only lose the protections of the Act where their conduct involves overt or implied threats or where there is a reasonable likelihood of imminent threat of physical harm.

In applying these standards, the Board has condoned employees who called their supervisor “asshole,” “stupid,” and a “fucking crook.” Plaza Auto Center, Inc., 360 NLRB 972 (2014). The Board has also approved of an employee’s Facebook post calling his supervisor a “nasty mother fucker” and writing, “fuck his mother and his entire fucking family.” Pier Sixty, LLC, 362 NLRB 505 (2015). Likewise, under these standards, the Board sanctioned “racially offensive, stereotyped comments” by a striker directed toward replacement workers. Cooper Tire & Rubber Co. v. NLRB, 866 F.3d 885 (8th Cir. 2017), affirming 363 NLRB 1952 (2016).

In Lion Elastomers, the Board noted that discussions over wages, hours and working conditions are “likely to engender ill feelings and strong responses” and that employees must be able to exercise their rights “robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.” The Board further asserted that employers should not be entitled to police the “civility” of employees engaged in protected activity; rather, this is the job for the Board. TheBoard expressly rejected concerns that the setting-specific standards conflict with an employer’s obligations under federal anti-discrimination laws.

The Overruled General Motors Standard

In General Motors, the Board did away with these setting-specific standards, holding that the Board’s traditional burden-shifting analysis in Wright Line, 251 NLRB 1083 (1980) should apply. Under Wright Line, the initial burden of proof is on the government to establish that an employer’s discipline or discharge of an employee was motivated by animus toward the employee’s Section 7 activity. If the government satisfied its burden of proof, the burden shifted to the employer to establish that it would have taken the same action against the employee even absent the Section 7 activity. If the employer showed this, the burden would shift back to the government to prove that the employer’s asserted reasons for taking the action were pretextual.

General Motors held that the setting-specific standards led to unpredictable results. It also held that employees should be able to engage in Section 7 activity without engaging in unprofessional behavior.

Employer Takeaways

In the wake of Lion Elastomers,union and non-union employers should be mindful of employees’ rights to engage in Section 7 activity, which includes the right to act concertedly to better their working conditions, speak about wages and to contact third parties – including the media and a company’s clients – about an ongoing labor dispute, among other protections. Employers should be aware that by returning to the old setting-specific standards, the Board will likely allow employees more leeway to engage in misconduct if that conduct arises in the context of Section 7 activity, and that discipline under these circumstances may be more difficult.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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