NLRB Makes it More Difficult for Employers to Defend Discipline for Offensive and Abusive Conduct

Cases involving such “mixed-motive” fact scenarios are not uncommon. Recent examples include employers who discharged employees for: (1) unleashing a barrage of profane ad hominem attacks against an owner during a meeting in which the employees also raised concerted complaints about compensation; (2) posting on social media a profane ad hominem attack against a manager, where the posting also promoted voting for union representation; and (3) shouting racial slurs while picketing.

Under the Wright Line standard, the Board’s General Counsel had to prove that (1) the employee engaged in protected activity, (2) the employer knew about that activity, and (3) the employer harbored animus against it sufficient to establish a causal relationship between the discipline and the employee’s protected activity. If the General Counsel succeeded, the burden of persuasion shifted to the employer to prove that it would have taken the same disciplinary action even absent the protected activity. The Board endorsed this standard less than three years ago, in General Motors LLC, 369 NLRB No. 127 (July 21, 2020).

But, in Lion Elastomers LLC, the Board reaffirmed the principle that, to safeguard their statutory rights in often heated labor disputes, employees must have some leeway for their behavior. Thus, the Board rejected the Wright Line approach in favor of the three “traditional” setting-specific standards that the Board abandoned in General Motors:

• For outbursts to management in the workplace, the Board endorsed the four-factor Atlantic Steel test, which considers “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.”
• For social-media posts and most cases involving conversations among employees in the workplace, the Board endorsed a totality of the circumstances test.
• And, for picket-line conduct, the Board endorsed the Clear Pine Mouldings standard, which asks whether, considering all the circumstances, non-strikers reasonably would have been coerced or intimidated by the abusive conduct.

Plus, the Board decided to apply its decision retroactively to all pending cases. The Board explained:

Applying today’s holding retroactively will avoid the potential for inconsistency in pending cases, will restore judicially approved standards to this area of law, and will ensure that our decision serves its intended goal of adequately protecting employees’ exercise of Section 7 rights, as Board law did for many decades.

The Lion Elastomers LLC decision makes clear that context matters. Employee conduct that may be wholly inappropriate on the office floor may be protected if it occurs on a picket line, at the negotiation table, or in social media exchanges. Thus, employers should think twice before disciplining employees for engaging in offensive conduct in those settings. Employers should also consider reinforcing, in human resources manuals and policy statements, that nothing contained therein is intended constrain employees from exercising their statutory rights. Employers should also confer with labor counsel about the many practical issues that Employers may confront due to the Board’s new ruling.