Employers Have New Standards to Follow for Disciplining Misconduct

The National Labor Relations Board (NLRB) recently overruled the General Motors decision, reverting back to previous ways of assessing situations where employees are disciplined for misconduct that may be a protected activity.

Protected activities are actions that employees can engage in without fear that their employers will retaliate against them. These activities are safeguarded under the National Labor Relations Act (NLRA) and are designed to protect employees’ rights to come together and address concerns.

The 2020 General Motors decision adopted the Wright Line standard, which considered if the employer had anti-union motives or valid, non-discriminatory justifications. This approach made it “easier for employers to sanction misconduct that takes place as part of protected activity.”¹ But the NLRB wasn’t happy about this. Chairperson Lauren McFerran stated that “[t]he General Motors decision . . . did not give adequate consideration to the importance of workers’ rights under the [NLRA].”²

So they changed it back to the original standard in order to protect employees’ rights. Now, conduct must be evaluated based on its setting, meaning that employees may engage in objectionable behavior as long as it’s in a “protected activity.”

For example, let’s say employees use profanity or strong language. If it was done in the ordinary workplace, an employer may discipline those employees for it. However, if the language was used during a union meeting, while it may be offensive or even threatening, an employer may not discipline or fire those employees because the conduct took place as a part of a protected activity. If you would like to know how it happened that employees can misbehave during “protected activity,” read on.

Lion Elastomers LLC (2020) and Lion Elastomers LLC II (2023)

How did this play out? In the original Lion Elastomers decision, the Board applied the old test, called Atlantic Steel, and found that the employer (Lion Elastomers) violated the Act by threatening to fire an employee for speaking up about concerns during a meeting and then actually firing that employee for engaging in protected union activity.³ Shortly thereafter, the General Motors decision overruled the setting-specific standards including the Atlantic Steel test; the Wright Line test became the new and proper standard. The Lion Elastomers case was on remand from the U.S. Court of Appeals for the Fifth Circuit and this latest decision (Lion Elastomers LLC II) reaffirms the original decision and order.

The Board in Lion Elastomers II decided that the General Motors test was not fair and said that restoring the traditional standards “ensures that adequate weight is given to the rights guaranteed to employees by Section 7 of the Act, by ensuring that those rights can be exercised by employees robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.”⁴

So, going forward, an employer’s disciplinary action against an employee for offensive conduct will be assessed based on the circumstances surrounding the misconduct. If the misconduct occurred during ordinary work and not part of a protected activity, it would be assessed based on the standard as in General Motors. But if the misconduct occurred in connection to a protected concerted activity (Section 7), it would be assessed based on the setting-specific standards.

Setting-Specific Standards

There are three setting-specific standards that were in place prior to the General Motors decision and are now re-instated as precedents to follow for “protected activity”: (1) the Atlantic Steel test; (2) the totality-of-the-circumstances test; and (3) the Clear Pine Mouldings standard.

Setting-specific standards focus on the severity of an employee’s misconduct and the context in which it took place. They are based on the setting of the misconduct, including on the picket line, towards managers, between employees, and on social media.

The Atlantic Steel test

The Atlantic Steel test considers four factors: (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.

The Totality-of-the-Circumstances test

This test governs social media posts and cases involving conversations among employees in the workplace. This approach considers the wide range of facts involved.

The Clear Pine Moulding Standard

The Clear Pine Moulding standard governs picket-line conduct. This test only allows an employee to be disciplined if the conduct involved an overt or implied threat or if there was a reasonable likelihood of an imminent physical confrontation.

Practical Considerations and Conflicting Laws

This decision recreates tension between the NLRA and anti-discrimination requirements, since it directly affects an employer’s ability to discipline misconduct including profane, discriminatory, and harassing statements. Employers might be concerned about being able to maintain civility and peace in their workplaces without the broader freedom to discipline granted in General Motors. It is the hope and expectation of the NLRB, however, that employees can manage their behavior while maintaining broader rights and protections. Whether this is realistic remains to be seen. Most employees who want to misbehave are smart enough to call it “protected activity.”

In the Lion Elastomers II opinion, the Board quoted the U.S. Supreme Court decision Epic Systems Corp. v. Lewis to conclude that it has no duty to reconcile the conflicting relationship between the NLRA’s protection of worker’s rights and the requirements from Title VII and other antidiscrimination laws: “[T]he reconciliation of distinct statutory regimes is a matter for the courts, not agencies.”⁵

What this Means for Employers

It will now be harder for employers to discipline or terminate employees who engage in misconduct if the conduct occurs while taking part in a “protected activity.” Employers need to carefully navigate the line between disciplining employees for legitimate reasons and potentially infringing upon their protected rights. They can take into account as part of the overall circumstances whether employees are harassing or mistreating other employees. But they must ensure the disciplinary actions are not or could not be taken to be retaliatory or discriminatory against the exercise of protected rights, as this could be deemed a violation of employees’ rights under the NLRA. They should be prepared for employees who make harassing or bullying comments to argue that it was done in the course of protected activity. Employers should be prepared to explain why the speech merits discipline if they believe the comments are still unacceptable.

Conclusion

Employers should be aware of the return to the previous standards for evaluating employee misconduct during protected activities. This will help to minimize the risk of legal challenges and maintain a fair and compliant approach to disciplining misconduct. It would also be wise to consider providing training to management teams on how to navigate these more complicated standards, including adequate documentation of the employees’ behavior in all contexts. Reviewing and updating policies may be necessary to avoid committing an unfair labor practice.

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¹ Board Returns to Traditional Standards for Evaluating Employee Misconduct During Protected Concerted Activity | National Labor Relations Board (nlrb.gov)

² Id.

³ Lion Elastomers LLC, 369 NLRB No. 88

⁴ Id., slip op. at 3.

⁵ Lion Elastomers, 369 NLRB No. 88, slip op. at 8, n. 38.

Featured Image by Rebecca Sidebotham.