Authors: Sarah Healey and Lisette Donewald*
Can an employer discipline an employee who shouts obscenities at a manager? The answer may not be so simple.
On May 1, 2023, the National Labor Relations Board (NLRB) issued its ruling in Lion Elastomers LLC II, overruling its 2020 decision General Motors LLC and restoring prior case law that provides broader protections to employees who engage in offensive conduct in connection with exercising their rights under the National Labor Relations Act (NLRA).
Generally, the NLRA protects the rights of all non-supervisory employees (even if they are not in a union) to form a union, collectively bargain, and engage in concerted protected activity to seek better terms and conditions of employment (a.k.a. “Section 7 rights”). The NLRA also prohibits employers from disciplining employees who engage in those activities. Decisions from the NLRB addressing whether employers have violated employees’ Section 7 rights tend to flip flop based on the political party of the current Presidency.
Summary of the Decision
In 2020 under the Trump Administration, the NLRB simplified its analysis for determining whether an employer could discipline an employee for outbursts or “abusive conduct” that occurred in the course of Section 7 activity to a single test. That single test focused not on the “nature of the employee’s conduct but rather on the motive of the employer in taking the adverse action.”
The current Board rejected this single test, reasoning that disputes over wages, hours, and working conditions are often heated and disruptive. Therefore, it was concerned that applying the motive test to all cases involving disruptive conduct in connection with Section 7 activity would chill an employee’s ability to exercise those rights. Accordingly, the NLRB reinstated the traditional setting-specific standards:
(1) The “Atlantic Steel” test” addresses conduct directed at management and analyzes the (a) place of the discussion; (b) subject matter discussed; (c) nature of the employee’s outburst; and (4) whether the outburst was provoked by an employer’s unfair labor practice”;
(2) The totality of the circumstances test, which governs social media posts and workplace conversations; and
(3) The “Clear Pine Mouldings” test addresses picket line conduct and considers whether under all the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket line conduct.
An Alternate View
In a lengthy dissent, Member Kaplan raised concerns that compliance with these standards may require employers to act in conflict with their legal duties under Federal, state and local antidiscrimination laws. By way of example, he cited to past NLRB cases that held as protected: (1) a striker’s racial slur shouted at a black security guard while gesturing with both middle fingers; and (2) an employee’s Facebook post that involved obscenities directed at the manager and the manager’s family while asking employees to vote yes for the union. In contrast, the majority cited to cases where employees lost protections under the NLRA including, for example, when employees advocated insubordination in Facebook posts.
Before taking an adverse employment action against an employee who has engaged in disruptive activity, employers must assess whether the conduct occurred in connection with the exercise of Section 7 rights. This may place employers in a difficult position if the conduct engaged in also raises questions about the employer’s legal obligations to provide a workplace free of harassment, discrimination and violence.
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*Sarah Healey is a partner in Carmody’s Labor and Employment Group. Lisette Donewald is a Summer Associate and a rising second year law student at Boston University School of Law.
This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.