NLRB Returns to More Lenient Standard for Employees’ Abusive and Profane Misconduct

By Chad M. Horton - Shawe Rosental LLP

May 5, 2023

The National Labor Relations Board (NLRB or the “Board”) announced a return to the pre-2020 “setting-specific” standard in cases where employees are disciplined for misconduct occurring during the course of activity protected by the National Labor Relations Act (NLRA). The case, Lion Elastomers, LLC II, overrules the Trump-era Board decision in General Motors, which assessed the employer’s motive in taking adverse action against an employee who may have engaged in misconduct during the course of protected activity. Consequently, the Board is likely to permit employees greater latitude to make abusive, offensive, or profane comments in the workplace if such comments have even an attenuated link to activity that may be protected by the NLRA.

As a reminder, Section 7 of the NLRA protects the rights of employees, whether unionized or not, to engage in “concerted” (i.e. group) activity for their mutual aid or protection (referred to as “protected concerted activity”). Section 8 prohibits employers from interfering with those rights.

Pre-2020 Setting-Specific Standards: Prior to the 2020 issuance of General Motors, the Board applied “setting-specific” standards to determine whether an employee lost the NLRA’s protection during the course of their protected conduct. More specifically, the Board applied (1) a four-factor test (Atlantic Steel) when addressing employees’ conduct towards management in the workplace; (2) a totality-of-the-circumstances test (Pier Sixty, LLC) for cases involving social media posts and most cases dealing with interactions among employees in the workplace; and (3) a separate standard (Clear Pines Mouldings) to address alleged misconduct on picket lines.

More specifically as to the Atlantic Steel test, the Board reviewed four factors:

 1. Place of the discussion;
 2. Subject matter of discussion;
 3. Nature of the employee’s outburst; and
 4. Whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

The 2020 Decision in General Motors: In 2020, the Board overruled the patchwork of setting-specific standards, replacing them with the well-known Wright Line standard to address all cases where employees are alleged to have engaged in abusive conduct in connection with protected activity. Wright Line utilizes a burden-shifting framework, under which the NLRB General Counsel (GC) must first establish that the employee’s protected conduct was a substantial or motivating factor in the disciplinary decision. If the GC meets that burden, the employer must then prove that it would have taken the same action absent the employee’s protected activity. Pursuant to General Motors, the Board thereafter applied a single, consistent standard to assess employer decisions to discipline employees who engaged in misconduct while arguably engaged in protected activity.

Part 1 of Lion Elastomers: In May 2020, just months before General Motors, the Board applied the Atlantic Steel factors and found that the employer violated the NLRA by first threatening to discharge an employee for voicing concerns during a safety meeting and later discharging the employee for engaging in union activity. While the case was pending at the U.S. Court of Appeals for the Fifth Circuit, the Board issued General Motors. The Fifth Circuit then remanded the case to the Board to determine the effect of the intervening General Motors decision on the Board’s holding in Lion Elastomers I.

Part 2 of Lion Elastomers: The Board used the remand to reaffirm its earlier decision, reinstated the different setting-specific standards for assessing misconduct during protected activity, and overruled General Motors. The Board reasoned that the proper focus in assessing “loss-of-protection” cases is the “employee’s misconduct (or lack of it) and the predictable effect on the exercise of Section 7 rights if the employer were permitted to discipline or discharge the employee.” The majority went further, stating that an employer’s good faith in making the disciplinary decision is “immaterial,” and an employer will have violated the NLRA where the Board has determined that the conduct for which the employee was disciplined was “insufficiently serious” to lose the NLRA’s protection.

Employer Takeaways: Before issuing discipline, employers will have to consider whether employee misconduct occurred while the employee may have been engaged in activity protected by the NLRA. This may include instances where employees utter profane, abusive, or threatening statements to managers and other employees. Indeed, in Lion Elastomers II, the Board cited with approval a previous decision where an employer was found to have violated the NLRA for terminating a striking employee who hurled racist taunts at other employees. With the reinstatement of these setting-specific standards, employers should expect future decisions where employees are found to have maintained the NLRA’s protections despite engaging in conduct that would unquestionably be worthy of discipline had the employees not been arguably engaged in Section 7 conduct.

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