The National Labor Relations Board issued a decision in Lion Elastomers LLC II on May 1, 2023, reversing General Motors LLC, 369 NLRB No. 127 (2020) and changing the standards related to discipline or discharge of workers who are offensive, abusive, or even discriminatory towards their supervisors or managers during their otherwise protected concerted activity under Section 7 of the National Labor Relations Act. This case returns to the “setting-specific” standards, which affords employees who engage in this type of conduct greater protection under the Act and makes it more difficult for employers to maintain a civil workplace.

The Board, in General Motors, attempted to balance employees’ protections under the Act with employers’ duties to address workplace discrimination and harassment. Employers were able to demonstrate that an employee engaging in unacceptable behavior would have been disciplined or terminated irrespective of their engaging in any protected Section 7 activity.  That analysis allowed for more consistent, reasonable outcomes that protected employees’ protected activity while also ensuring that employers had the ability to protect their employees from hostile workplaces, threats of violence, and other forms of harassment.

The General Motors standard did not last for long.  The recent decision in Lion Elastomers brings the labor relations community back to reviewing employee misconduct allegations under at least three different tests based on the circumstances.  

One test governs general employee misconduct under a four-part factor test.  The factors include:  (1) the place; (2) the subject matter; (3) the nature of the employee’s misconduct or outburst; and (4) whether the misconduct or outburst was, in any way, provoked by an employer’s unfair labor practice.

Another “totality of the circumstances” test applies to social-media posts and conversations among employees in the workplace.  And, yet another, different, “totality of the circumstances” test applies to picket-line misconduct, which in some cases has allowed employees to remain protected by labor law even where they have engaged in offensive and discriminatory behavior (including outright racist conduct in past cases).

The dissent in Lion Elastomers LLC II points out that the new decision will lead to inconsistent results and will make employers choose between violating federal labor law for disciplining or discharging employees who engage inoffensive or discriminatory conduct during their otherwise protected activity or violating federal and state non-discrimination laws by doing nothing to enforce EEO policies. As the Lion Elastomers LLC II decision stands, employers are put in a rock and a hard place when dealing with offensive, harassing, and discriminatory conduct by employees who are engaged in otherwise protected activity. Moreover, this decision could empower employees to be uncivil or vile towards their managers and supervisors during the course of their otherwise protected activity.

The NLRB decision is still subject to an appeal and may be vacated sometime in the future by an appeals court. Given the uncertainties of this recent decision, employers should consider its impact when disciplining or discharging employees for discriminatory or harassing statements made during workplace activism or union activity.

Fox Rothschild’s Labor Management Relations Practice Group will continue to monitor developments in this case, and other National Labor Relations Board cases, and will provide updates as more information becomes available.

For additional information about the implications of this NLRB decision or others, please contact Andrew MacDonald at, Maja Veselinovic at , or another member of Fox Rothschild’s national Labor & Employment Department.