May 5, 2023

NLRB Ruling Limits Employers’ Ability to Discipline in Response to Abusive Conduct

NLRB Ruling Limits Employers’ Ability to Discipline in Response to Abusive Conduct

On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers LLC II, 372 NLRB No. 83 reversing its 2020 ruling in General Motors LLC, 369 NLRB No. 127, and creating an inconsistent analysis of employer discipline when an employee commits misconduct while engaged in protected concerted activity.

In General Motors, the NLRB held that a single consistent standard should apply to all situations involving abusive workplace conduct when the employee is engaged in activity under Section 7 of the National Labor Relations Act (“NLRA”). In General Motors, the NLRB adopted the Wright Line test for such disciplinary actions or discharges. The Wright Line test focused on the motive of the employer when it takes an adverse action, and employers may meet their burden by demonstrating that they would have taken the same action whether or not the employee engaged in protected activity under Section 7.

In Lion Elastomers LLC II, the NLRB rejected the single standard set forth in General Motors and held that various setting-specific standards must once again be applied to determine whether a disciplinary action is a violation of the NLRA. The three reinstated pre-General Motors setting specific standards are the following:

  1. Employee conduct in the workplace towards management:

Four factors will be reviewed to determine if the employee’s conduct loses the protection of the NLRA: (1) the place of the discussion; (2) the subject matter of the employee’s statements; (3) the nature of the employee’s outburst, and (4) whether the outburst was caused by the employer’s unfair labor practice.

  1. Employee’s “social media posts and most cases involving conversations among employees in the workplace”:

Such conduct will be evaluated under the “totality-of-the-circumstances test.”

  1. Picket-line conduct:

Such conduct will be evaluated based on an analysis of all of the circumstances to determine whether “non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.”

The NLRB majority challenged the lone dissenting board member’s objection that using the majority’s tests fail to take an employer’s motive into consideration and may create obligations on employers that conflict with their “legal duties to protect employees from discrimination on the basis of protected characteristics – including race, color, religion, sex, national origin, age, and disability – as set forth in Federal, state, and local antidiscrimination laws.” The NLRB majority held that “offhand comments and isolated incidents” are not “extremely serious,” and it would find that the accused employee “retained the protection of the Act if they occurred in the course of Section 7 activity.”

Based on the Lion Elastomers decision, the same employment decision intended to satisfy an employer’s obligation under Title VII may simultaneously violate the NLRA (and vice versa). This creates an unreasonable choice for employers who, depending on the situation, may be obligated to let offensive conduct slide and incur Title VII, state and local law liability or address the conduct and risk an unfair labor practice charge.

Employers should review and revise policies relating to workplace conduct, social media use, and picket-line conduct to ensure they are consistent with these revised standards and other NLRA protections for workers. Because conduct previously considered to be threatening or harassing may be found to be protected under the NLRA, anti-harassment and anti-bullying policies should be reviewed and revised with examples of behavior that is strictly prohibited.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

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