In the latest swing away from recent precedent, the National Labor Relations Board (NLRB or Board) issued its ruling in Lion Elastomers LLC II, which overturns the 2020 General Motors LLC decision. These decisions address an employer’s ability to issue discipline in response to a worker’s profane speech or conduct purportedly taking place in the context of workplace activism and union-related activity.

Put simply, the Lion Elastomers decision makes it significantly more difficult to terminate employees using derogatory language or engaging in abusive conduct when claiming to speak out against workplace conditions. The tests to assess whether the conduct is so egregious as to cause an employee to lose protections under the National Labor Relations Act (NLRA) require consideration of the setting and context of the situation.

What Changed?

Under the now-overturned General Motors LLC decision, the Board rejected setting-specific standards to determine whether employers unlawfully disciplined or discharged employees engaging in alleged abusive conduct while participating in activity purportedly protected by Section 7 of the NLRA (which protects the right of employees to organize or to discuss shared concerns regarding the workplace). The General Motors Board concluded that, regardless of the setting involved, the fundamental issue would be the motive of the employer in taking adverse action against the employee. Under General Motors, an employer could legally discipline an employee if it could show it would have reprimanded the employee without the alleged union activity.

What’s the Rule Now?

The Lion Elastomers decision expands employees’ Section 7 rights and makes it more difficult to discipline or terminate an employee engaging in derogatory behavior. In assessing whether a worker’s conduct is so egregious as to cause them to lose the protection of the NLRA, the Board has now restored a series of tests that use context- or setting-specific factors and account for labor disputes being “heated affairs.” These tests, each of which gives workers more leeway for behaviors (including racially charged or misogynistic slurs) in certain contexts, include:

The Atlantic Steel Test: This is a multifactor test, which applies to outbursts in the course of confrontation with a manager and considers where the interaction took place, the subject matter, the nature of the outburst and whether the employer provoked the outburst.

TheTotality-of-the-Circumstances Test: This assessment applies to social media posts and cases involving conversations among employees in the workplace. Here, the Board will apply a totality-of-the-circumstances approach without regard to any particular factor.

The Clear Pine Mouldings Standard: This test governs picket line misconduct. Again, the Board will examine the totality of the circumstances in determining whether non-striking employees would have reasonably been coerced or intimidated by the misconduct. If so, discipline is proper.

The Board has opined that each of these standards shares a “common principle,” namely that “conduct occurring during the course of protected activity must be evaluated as part of that activity—not as if it occurred separately from it and in the ordinary workplace context.” Under these circumstance-specific tests, an employee’s outrageous statements could be considered protected activity, shielded from discipline. This leaves the door open for statements to be made – without resulting discipline or termination – that may cause problems down the road for the employer. For example, under some circumstances, the Board’s decision may prevent an employer from disciplining an employee making racist statements in the context of union activity, while exposing the employer to another employee’s EEOC charge based on the undisciplined statements. In fact, the Board goes so far as to suggest that employees engaging in Section 7 activity who make otherwise actionable comments must actually create a hostile work environment before the employer can take adverse action and, even then, the employer’s ability to do so is not clear. Lion Elastomers LLC II, 372 NLRB No. 83, slip op. at 8–9 (2023).

Bottom Line for Employers

Under the Board’s latest decision, not all employee misconduct is equal. Indeed, the Board opined that “[t]here is a fundamental difference . . . between employee misconduct committed during Section 7 activity and misconduct during ordinary work.” Id. at 2. It will not be enough for an employer to assess whether it would still discipline the employee for the same conduct or language regardless of union activity.

Additionally, a one-size-fits-all disciplinary approach for specific behaviors exhibited in conjunction with Section 7 activity will no longer be acceptable. Instead, derogatory behaviors must now be analyzed under the applicable context-specific test restored in the Lion Elastomers decision. Each test allows for greater employee latitude and protection than the Board’s General Motors decision did; thus, employers should be aware that it will be more difficult to discipline an employee for making outrageous statements or engaging in derogatory behaviors if made while participating in protected concerted activity.

Should you need to discuss this decision and its effect on your organization in greater detail, the BakerHostetler Labor and Employment Practice Group is available to assist.