NLRB Restores Context-Specific Tests for Determining Whether an Employee Loses Protection of the NLRA for Conduct while Engaging in Protected Activity
NLRB Restores Context-Specific Tests for Determining Whether an Employee Loses Protection of the NLRA for Conduct while Engaging in Protected Activity

A recent NLRB decision in Lion Elastomers LLC, 372 NLRB 83 (May 1, 2023) restored prior Board law, which had used context-specific approaches to assess whether am employee’s outburst stripped him of protection under the National Labor Relations Act (the “Act”).  The decision by the current, three-member Democratic majority Board, makes it more difficult for employers to discipline or discharge employees who engage in profane, abusive or otherwise inappropriate conduct when done in connection with protected activity under the Act.  The restored law assesses employee conduct by applying highly amorphous setting-specific tests for the following various contexts: 

  1. Conduct during confrontations with managers is evaluated under the four-factor test from the Board’s decision in Atlantic Steel, 245 NLRB 814 (1979), which considers the place and subject matter of the discussion, the nature of the employee’s conduct, and whether the employer provoked the conduct by its unfair labor practice; 
  2. Conduct on the picket line is evaluated based on the Board’s decision in Clear Pine Moldings, Inc., 268 NLRB 1044 (1984), which analyzes whether non-strikers would have been coerced or intimidated by the picket-line conduct; and
  3. Conduct on social media pertaining to workplace issues is analyzed under the totality of the circumstances that surround them, based on a Board decision in Pier Sixty, LLC, 362 NLRB 505 (2015). 

The Lion Elastomers decision comes just three years after the former Board issued its decision in General Motors LLC, 369 NLRB 127 (2020), which rejected the above setting-specific standards to assess such “abusive conduct.”  The Board in General Motors concluded that, regardless of the setting, the fundamental issue is the motive of the employer, not the activity of the employee.  The Board found that such cases should be analyzed under the separate burden-shifting framework from the Board decision in Wright Line, 251 NLRB 1083 (1980), which permits employers to rebut allegations that its decision to discipline or discharge an employee was motived by animus toward Section 7 activity, if employers can demonstrate a legitimate business reason for their disciplinary action or discharge.  By adopting the Wright Line standard, the Board rejected the traditional distinction between employee misconduct committed during protected activity and misconduct unrelated to such activity.  In so doing, the Board decision marked a sweeping change that overturned decades of precedent that had promulgated the various setting-specific tests. 

Analysis of the Board’s Decision to Restore Setting-Specific Tests 

The Board in Lion Elastomers re-evaluated General Motors in the context of an employee who had a heated outburst with his supervisor during a safety meeting.  The Board decided to overrule General Motors and return to earlier precedent applying setting-specific standards aimed at determining whether the employee conduct was so egregious that they lost the Act’s protection, rather than analyzing the employer’s motive.  The Board reasoned that Section 7 affords greater protection of employee conduct, including offensive remarks and conduct, because the “realities of industrial life,” and nature of Section 7 activity often entail disputes over wages and working conditions, and engender ill feelings and strong responses.  Frank and robust discussions may often lead to offensive remarks and conduct that would otherwise not be protected under ordinary circumstances, such as talking in a loud voice, making hand gestures, standing up from a chair, using profanity, or even highly offensive racially or sexually charged comments.

According to the Board, permitting employers to discharge or discipline employees for offensive conduct while engaging in protected activity would create a chilling effect on employees’ exercise of their Section 7 rights and frustrate the Act’s purpose.  Therefore, as the Board explained, there is a fundamental difference between misconduct during Section 7 activity and ordinary activity.  The Board further explained that each of the standards takes into account the realities of the particular setting.  There clearly are meaningful differences between and among, for example (1) a confrontation on a picket line between striking employees and non-striking employees with Section 7 rights of their own; (2) a bargaining session or grievance meeting where an employee is dealing face-to-face with management as a representative of other employees and thus a statutory equal of the employer; and (3) an online discussion among employees, where managers are not physically or even virtually present.  By disregarding the distinction between misconduct committed during Section 7 activity and misconduct unrelated to such activity, the Wright Line standard adopted by the General Motors Board permitted employers to dictate, based on their own managerial prerogatives, the scope of protected activity under the Act, including discipline of protected activity where it merely violates common incivility rules.


The 2020 shift away from the setting-specific tests in the General Motors decision was short-lived.  In the ordinary context of non-protected activity, employers are still free to discipline and discharge employees consistent with the applicable collective bargaining agreement and common incivility rules.  However, the Board under the current administration has already committed to a broad interpretation of what constitutes protected activity and now appears vigilant in its protection of the manner in which employees exercise their rights under Section 7 of the Act, even if it entails particularly profane and abusive conduct.  If upheld by the courts, the Lion Elastomers decision will require employers to apply extreme caution before issuing any sort of discipline to employees who are engaged in protected activity, whether during labor meetings, pickets, or even social media, regardless of the profanity of the language or ad hominem attacks.

Contact the authors or your trusted AALRR counsel for more information. 

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR post does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process. 

© 2023 Atkinson, Andelson, Loya, Ruud & Romo

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