Earlier this week, the National Labor Relations Board (NLRB) issued a decision in Lion Elastomers LLC, 372 NLRB No. 83 (2023), which revived the “setting-specific standards” for determining whether an employee lost the protection of the National Labor Relations Act (NLRA) when the employee engaged in “workplace misconduct” in connection with activity that is also protected by Section 7 of the NLRA.
The case is important because an employee who engages in “workplace misconduct” may be insulated from discipline if the misconduct took place in connection with activity protected by the NLRA.
Background
In 2020, the Board in General Motors LLC, 369 NLRB No. 127 (2020), eliminated the “setting-specific standards” and concluded that “abusive conduct” is separable from the related Section 7 activity. Instead, the Board found that the causation analysis of the Board’s decision in Wright Line should be applied because there was a dispute over whether the discipline was motivated by activity protected by the NLRA or the “abusive conduct.” According to the Board, “[u]nder this approach, the Board will properly find an unfair labor practice for an employer’s discipline following abusive conduct committed in the course of Section 7 activity when the General Counsel shows that the Section 7 activity was a motivating factor in the discipline, and the employer fails to show that it would have issued the same discipline even in the absence of the related Section 7 activity.”
The Board’s General Motors decision overruled three context-specific standards previously established by the Board: (1) the four-factor test in Atlantic Steel, 245 NLRB 814 (1979), which governed employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test in Pier Sixty, LLC, 362 NLRB 505, 506 (2015), which governed social-media posts and most cases involving conversations among employees in the workplace; and (3) the standard in Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984), which governed picket-line conduct.
Board Finds that NLRA Provides Room for “Employee Misconduct”
In Lion Elastomers, the Board overruled the Board’s decision in General Motors, explaining:
In erasing the fundamental distinction between misconduct committed during protected activity and misconduct unconnected with such activity, the General Motors Board abandoned the Board’s statutory function of determining the scope of protection for Section 7 activity. It instead granted new power to employers to effectively determine, based on their own individual practices and preferences, the scope of protected activity under the National Labor Relations Act. Moreover, because the General Motors Board failed to define “abusive conduct,” it failed to cabin its decision to those instances involving only the most extreme misconduct and made Wright Line and the managerial prerogatives attached to it applicable whenever an employer ostensibly disciplines or discharges an employee for any “separable” conduct in the course of Section 7 activity.
. . .
Whatever the particular setting, the elevation of “civility” as a supposed statutory goal gives employers dangerous discretionary power over employees whenever they exercise their statutory rights in opposition to the employer’s interests. But just as Title VII is not “a general civility code for the American workplace,” neither is the National Labor Relations Act. It imposes no obligation on employees to be “civil” in exercising their statutory rights. And while the Act has always been understood to recognize that employers have a legitimate interest in maintaining order and respect in the workplace, it also authorizes the Board to balance that interest against employees’ Section 7 rights.[] Put somewhat differently, the Board–not employers–referees the exercise of protected activity under the Act.
Thus, the Board restored the “context-specific standards” established by the Board in (1) Atlantic Steel, 245 NLRB 814 (1979), (2) Pier Sixty, LLC, 362 NLRB 505, 506 (2015), and (3) Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984). As a result, if an employee engages in “misconduct” during the employee’s exercise of protected concerted activity, the NLRB will utilize these context-specific tests to establish whether the employee’s conduct lost the protection of the NLRA.
For example, prior to 2020, the Board issued several decisions finding that employees who engaged in “employment misconduct” were protected from discipline by the NLRA because their misconduct took place as part of activities protected by the NLRA:
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- Tampa Tribune, 351 NLRB 1324 (2007)—The Board found that an employee’s reference to a vice president as a “stupid f****** moron” retained protection of the NLRA under the four-factor test in Atlantic Steel.
- Starbucks Corp., 355 NLRB 636 (2010)—The Board found that an employee yelling at an off-duty manager in front of customers that “[y]ou can go f*** yourself, if you want to f*** me up, go ahead, I’m here,” did not lose the protection of the NLRA under the four-factor test in Atlantic Steel.
- Felix Industries, 331 NLRB 144 (2000)—The Board found that an employee who called his supervisor a “f****** kid” three times and insisted he did not have to listen to him did not lose the protection of the NLRA under the four-factor test in Atlantic Steel.
- Cooper Tire & Rubber Co., 363 NLRB 1952 (2016)—The Board found that a picketer who said to black replacement workers, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” did not lose the protection of the Act under Clear Pine Mouldings.
Bottom Line
In overturning the Board’s decision in General Motors, the Board muddies the water regarding the discipline of employees for workplace misconduct if the misconduct occurs in connection with activity otherwise protected by the NLRA. Thus, employers should exercise caution and consult with experienced labor counsel if they are faced with a disciplinary issue that also involves activity protected by the NLRA.
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