On May 1, the National Labor Relations Board issued a decision that will restore protection for employee misconduct when it occurs during protected concerted activity.

In Lion Elastomers LLC II, the Board overruled 3-1 a decision of the Trump-era Board that found an employer could discipline or discharge employees for misconduct – even if the misconduct occurred in connection with protected concerted activity – as long as the protected activity was not the motivation for the employer’s actions.

The Board now, with a Biden-appointed majority, has returned to requiring the use of three “situation-specific” standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during protected concerted activity under the National Labor Relations Act.

The following three situation-specific standards will again apply in employee misconduct cases:

  • The Atlantic Steel standard, which governs employees’ conduct toward management.
  • The totality-of-the-circumstances standard, which governs employees’ social media activity and most cases involving conversations among employees.
  • The Clear Pine Mouldings standard, which applies to picket line activity.

Under each of the standards, the Board gets to decide whether the misconduct at issue is severe enough – in the Board’s subjective view – to be unprotected under the NLRA. There is no bright line for employers. Even when it comes to egregious misconduct such as use of racial epithets, sexual harassment, threats of violence, threats of damage to property or person, or abusive conduct or obscene comments and gestures, employers may be at risk if they take action based on the employee’s behavior – even if the action was taken solely because of the misconduct and not because of the protected concerted activity. In the Board’s view, the misconduct is part of the Section 7 activity and employees should get some leeway to engage in misconduct.

The Trump-era Board’s General Motors decision

In General Motors, a majority on the Trump-era Board rejected the three situation-specific standards. Instead, the majority adopted the regularly-used Wright Line standard, which focuses on the employer’s motive for taking the disciplinary action and often on whether, notwithstanding the protected concerted activity, the employee would have been terminated anyway. Under that standard, the employee misconduct does not get “special protection” simply because it occurs in connection with protected concerted activity.

As a result of Monday’s Board decision, General Motors is overruled.

The Lion Elastomers II decision

The Lion Elastomers case has a long and complicated history.

In 2020, the NLRB – which then had a Republican majority – issued a decision adverse to the employer in Lion Elastomers LLC. There, the Board applied the Atlantic Steel standard and found that the employer had violated Section 8(a)(1) of the NLRA by threatening a union committeeman with discipline for his conduct in meetings about grievances, including one or more grievances about a safety issue.

According to the employer, the committeeman used inflammatory and insulting language that inhibited attempts to create a cooperative atmosphere. The employer warned the committeeman that continued personal attacks and false statements about a member of the management team were in direct violation of the employer’s plant rules on conduct and work performance. In addition to finding that the employer violated Section 8(a)(1) of the Act, the Board also found that the employer discharged the committeeman for filing multiple grievances, in violation of Sections 8(a)(1) and (3) of the Act, applying the Wright Line standard.

The Board’s decision was up for review by the U.S. Court of Appeals for the Fifth Circuit, but in the meantime, the Board issued its General Motors decision, and the case was remanded to the Board for reconsideration. By this time the Board had a Democratic majority. In Lion Elastomers II, the decision issued on Monday, the Biden Board affirmed the original decision but used the case to overrule General Motors.

In Lion Elastomers II, the Board majority focused overwhelmingly on the fact that labor disputes are often heated and rife with conflict, as has been noted by the U.S. Supreme Court. According to the majority, employees must be given some leeway for their misconduct while engaging in protected concerted activity in order to safeguard their statutory rights to engage in that activity. Thus, the Board’s decision gives misconduct special protection simply because it occurred during and in the course of otherwise protected concerted activity.

The majority stressed that no federal court had ever rejected any of the three situation-specific standards and emphasized that the Board, and not employers, should referee the scope of NLRA protection for concerted activity.

Board Chair Lauren M. McFerran, quoted in an NLRB press release issued on Monday, distinguished “ordinary” workplace misconduct from misconduct that occurs in connection with protected concerted activity:

The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers’ rights under the National Labor Relations Act … To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity – not as if it occurred in the ordinary workplace context.

The Board majority consisted of Chair McFerran and Members Gwynne A. Wilcox and David M. Prouty, all Democrats. The lone Republican Member, Marvin E. Kaplan, dissented.

Implications for employers

Employers may want to be more circumspect in their decision making when considering discipline or discharge for employee misconduct that takes place along with even arguably protected concerted activity under Section 7 of the Act. We expect this Board majority to take a broad, if not an almost all-encompassing, view of what constitutes protected concerted activity.

There is no clear line for employers to gauge what constitutes protected concerted activity or what accompanying misconduct is egregious enough to warrant discipline. The Board’s subjective views of the severity of employee misconduct have been proven to be, and are likely to continue to be, vastly different from the views of employers.

In recent years, the Board has required employers to reinstate former employees who have undisputedly engaged in offensive behavior or abusive conduct, not because of any proven motivation or discriminatory animus against protected concerted activity, but simply because the offensive behavior accompanied protected concerted activity. For example, in Pier Sixty, the Obama-era Board found protected an employee’s post on social media that stated that a restaurant manager was a “nasty M…F…!!!!!! F… his mother and his entire f…ing family!!!!” (Ellipses added.) Likewise, the Board in Plaza Auto Center found protected an employee’s calling the employer’s owner “a f …ing mother f…ing,” and “f...ing crook,” an “a..hole,” and “stupid.” (Ellipses added.)

Much like the “we’ll know it when we see it” standard, employers may want to take disciplinary action for misconduct accompanying protected concerted activity only when the disciplinary decision is essentially “undebatable” or when the Board consequences might be preferable to tolerating the misconduct. (For example, in some states, an employer clearly faces potential tort liability for negligent retention of an employee known to have made threats of violence.)

With the Board majority’s resurrected standards, employers are in the unenviable position of trying to provide a safe, civil, and productive workplace, while having to tolerate relatively high levels of employee misconduct. Anything short of actual violence or unambiguous, direct threats of violence is potentially within the scope of the special protection carved out for misconduct that accompanies any type of protected concerted activity.

As is too frequently the case, it is possible that the Board’s decision will harm employees the most.

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