National Labor Relations Board Changes its Mind (Again) – Reverts to Previous Rule on Disciplining Misconduct Occurring in Connection with Protected Activity

Kollman & Saucier
Kollman & Saucier

It is no secret that the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel Abruzzo is pushing a pro-union/employee agenda.  She stated as much in 2021 when she released her 10-page memo to NLRB staff outlining that under her leadership, the NLRB would focus on reviewing the “numerous adjustments to the law, including a wide array of doctrinal shifts” that occurred under the NLRB’s prior leadership. 

Don’t get me wrong, correcting misapplied law and revising precedent to clarify rules is an important part of the NLRB; it helps provide clarity to both employees and employers on what actions are legal and what conduct is protected.  However, I cannot help but get frustrated with the constant turmoil and change to what is and what is not considered legal when a case comes before the Board.

In the latest effort to undo past decisions and leave employers wondering what law even applies anymore, on Monday, May 1, 2023 the National Labor Relations Board (NLRB) issued its opinion in Lion Elastomers LLC II, Case No. 16-CA-190681 (NLRB May 1, 2023) and overturned General Motors LLC, 369 NLRB No. 127 (2020). 

Lion Elostomers dealt with an employer’s discipline and termination of an employee/Union steward who had repeatedly engaged in argumentative behavior with managers, including several “heated discussions” and other behavior which led to the employee receiving discipline and an eventual termination. 

Under General Motors, the NLRB recognized that when an employer disciplines an employee for abusive conduct, the lawfulness of that action was judged by whether or not the employer would have disciplined the employee for their misconduct, regardless of the context in which it occurred.  The General Motors standard applied a typical mixed-motive analysis that courts apply in discrimination contexts, and was previously established as Board Law in Wright Line, 251 NLRB 1083 (1980). 

That analysis sets the burden on the NLRB to first establish a prima facie case that the Section 7 protected activity the employee was engaged in at the time of the abusive conduct was a substantial or motivating factor in the employee’s adverse action.  The employer would then rebut the prima facie case if it demonstrated that it would have taken the same action based on the conduct, without relation to the Section 7 activity. 

The NLRB held that “[n]o Federal appellate court has ever held that the Act prohibits the Board from adopting setting-specific standards that, within limits, treat certain employee conduct as inseparable from the statutorily protected activity during which it occurs.”  Section 7 activity often evokes ill feelings and strong responses, therefore “misconduct in the course of Section 7 activity is treated differently than misconduct in the ordinary workplace setting that is unrelated to Section 7 activity.”  Now, the standard returns to the convoluted “setting-specific” test for employers to determine if an employee’s otherwise prohibited conduct is protected by the National Labor Relations Act.

These settings are:

  • “Outbursts to management in the workplace.” The Board will analyze the place, subject-matter, nature of employee’s outburst, and whether it was provoked by an unfair labor practice;
  • Social media posts and situations that involve conversations among employees in the workplace. The Board will apply a “totality of the circumstances” analysis; and
  • Abusive picket-line conduct. The Board will consider whether non-strikers reasonably would have been coerced or intimidated by the conduct.


The decision in Lion Elostomers was 2-1, and the dissent brought up an alarming point: “[i]f the past is any guide, the Board will now protect employees who engage in a full range of indefensible misconduct, such as profane ad hominem attacks and threats to supervisors in the workplace, posting social media attacks against a manager and his family, shouting racist epithets at other employees, or carrying signs sexually harassing a particular employee.”  

Employers will need to be keenly aware of the circumstances that are involved when an employee engages in abusive or inappropriate behavior before it can issue discipline, otherwise the employer risks action by the NLRB.  What may seem like a clear-cut case of issuing discipline that is consistent with other employment policies and practices, employers may violate the National Labor Relations Act if discipline is issued in response to inappropriate or abusive behavior that occurs in the context of conversations regarding workplace conditions, benefits, wages, or other perceived problems.  It is a wide net to cast.

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