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In a decision that had been brought forward, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-term load transfer test to determine the legality of employer discipline of employees who engaged in abusive conduct or inadequate. Deprived of the ability to simply demonstrate such discipline was not retaliation for protected conduct. Employers will once again be called upon to deal with an undefined list of factors that have often made similar outrageous conduct in the workplace immune to discipline.

The GM Decision

As we covered earlier, the “Board issued a decision in General Motors, LLC (GM)369 NLRB No. 127 (2020), maintaining that certain abusive or inappropriate speeches in the workplace by employees engaged in concerted or union activities (“PCA”) were no protected by Section 7 of the National Labor Relations Act (“NLRA” or “Act”). To see Sticks and Stones… The NLRB rethinks its position on abusive speech in the workplace by employees while they are engaged in protected union and concert activities. The decision in GM reversed 40 years of Board precedent and emphasized the employer’s motive for taking adverse action, giving employers the ability to discipline workers for engaging in abusive or inappropriate conduct, provided the discipline was not retaliation for protected conduct. The Council in GM said it would now apply its well-worn test first established in Wright Line251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 US 989 (1982), approved in NLRB v. Transportation Management Corp., 462 US 393 (1983), for cases involving employees who were disciplined for making abusive statements related to the PCA. In doing so, the GM The Board overturned three separate tests previously used to determine whether speech in the workplace constituted PCA: (1) the four-factor test established in Atlantic Steel, 245 NLRB 814 (1979), which governs the conduct of employees in relation to management in the workplace, considering (a) the location of the discussion, (b) the subject of the discussion, (c) the nature of the employee’s outburst, and (d) whether the outburst was, in any way, caused by an unfair labor practice by the employer; (2) the totality of circumstances test, which governed social media posts and most cases involving conversations between employees in the workplace, announced on Desert Springs Hospital Medical Center, 363 NLRB 1824, 1839 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB No. 59 (2015); and (3) the pattern announced in clear pine frames, 268 NLRB No. 173 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985), in which the Board considered whether, in all circumstances, non-strikers would have been reasonably coerced or intimidated by the picket conduct.

The Lion II Decision: A Return to Protections for Abusive Speech in the Workplace

On May 1, 2023, in Lion Elastomers, LLC372 NLRB No. 83 (2023), the NLRB overturned GM and has again made it more difficult for employers to discipline employees for abusive or inappropriate speech in the workplace while engaging in otherwise protected concert or union activities. Originally, on May 29, 2020, the Board issued its first decision on Lion Elastomers, LLC, 369 NLRB No. 88 (2020), finding that the employer violated Section 8(a)(1) and (3) of the Act by threatening an employee with dismissal and then disciplining and ultimately dismissing the employee for his conduct in a safe environment meeting and why he engaged in union activity. Finding that the employee did not lose the protection of the Act when he raised concerns about employees’ working conditions to the employer’s safety manager at a safety meeting, the Board adopted the judge’s application of the four-factor test set forth in Atlantic Steel. The employer filed a petition for review of the Order of Counsel with the United States Court of Appeals for the Fifth Circuit, and the Board filed a cross-application for enforcement of the Order. While the case was pending in the Fifth Circuit, the Board issued its decision in GM, in which it held that it would no longer apply a number of specific establishment standards to determine whether employers have unlawfully disciplined or dismissed employees who allegedly engaged in abusive conduct in connection with activities protected by Section 7 of the Act. The Fifth Circuit duly referred the matter back to the Board in light of GM.

At the request of the Fifth Circuit, the Board upheld its earlier decision and seized the opportunity to restore forty years of precedent by setting aside GM and confirming the employer in Lion Elastomers violated the Law. In an attempt to “find a balance different from the General Motors Board between the Section 7 rights of employees and the legitimate interests of employers,” the Board elevated the rights of employees over the ability of employers to regulate employee speech in the workplace, noting that “(i) if an employer can dismissing an employee for offending would defeat the purposes of the Act – either ‘collective bargaining would cease to be between equals (an employee having no parallel method of retaliation)’ or ’employees would hesitate to personally participate in negotiations, leaving such matters entirely to their representatives’,” The Board emphasized that conduct that occurs in the course of protected activity must be assessed as part of that activity, not separately or in the context of the ordinary workplace. Recognizing that misconduct in the course of Section 7 activity is treated differently from misconduct in the normal work environment that is unrelated to Section 7 activity, the Board further noted that “disputes over wages, hours and conditions of work are among the races most likely to generate hard feelings and strong responses,” serving as a backdrop to the Board’s criticisms of the Trump Board’s adoption by the Wright Line test on GM. The Council in Lion Elastomers stated, “the focus on why Wright Line standard completely fails to meet the policies of the (NLRA) in the context other than misconduct committed during the protected activity. It gives too little weight to the statutory rights of employees and too much weight to the interests of employers.” Notably, the majority of the Council also argued that the GM test created more unpredictability for employers, and countered the argument that setting specific standards he revived raises potential conflicts with federal anti-discrimination law, stating “(i) in determining whether employee misconduct is sufficiently serious to lose the protection of the Act , the Board is free to consider a possible conflict with another federal statute if the misconduct is found to have retained the protection of the law.” Intertwined throughout the majority opinion in Lion Elastomers is the practical argument that “labor disputes often remain hot topics” and while employees certainly it is not necessary engage in abusive behavior to exercise their rights under Section 7, they could and often do engaging in uncivil behavior, citing the constant stream of cases to be brought before the Board, evidencing such conduct as the main point of the Board’s traditional establishment specific standards.

main conclusions

The Chamber’s decision in Lion Elastomers removes the bright line that briefly existed between protected conduct and unprotected PCA-related abusive language and conduct. This will undoubtedly make it more difficult for an employer to balance its obligations under anti-harassment and anti-bullying laws and the NLRA. As Kaplan, a dissenting member of the Board concluded, “(i) if the past is any guide, the Board will now protect employees who engage in a wide range of indefensible misconduct, such as profane ad hominem attacks and threats to supervisors at the workplace. work, social media posts, media attacks against a manager and his family, shouting racist epithets at other employees, or carrying signs sexually harassing a particular employee.” As employers are potentially barred from responding to most employees’ PCA-related abusive language, employers may now be faced with an undesirable legally binding dilemma – violating the NLRA or being subject to liability under anti-harassment and anti-bullying laws for not considering action necessary to prevent an employee’s abusive language and/or conduct toward other employees.

Despite the potential risk of not disciplining an employee who engages in abusive speech, employers should be cautious when disciplining or terminating employees who use abusive or inappropriate language when the employee is also engaging in PCA. Even with a valid legal basis for taking adverse action, an employer may be found to be in violation of the NLRA if the disciplined employee is involved in PCA.