NLRB Restricts Discipline for Employee Misconduct During Protected Activities

Author: Robert S. Teachout, Brightmine Legal Editor

May 3, 2023

Employers that discipline an employee for misconduct committed while the employee is participating in protected concerted activities under the National Labor Relations Act (NLRA) may commit an unfair labor practice, the National Labor Relations Board (NLRB) has ruled.

In announcing its decision in Lion Elastomer LLC II, the Board explained that it is returning to long-established "setting-specific" standards that focus on the severity of the employee's misconduct (such as the use of profanity and abusive language) and the context in which it took place. These standards are based on the setting of the employee's misconduct, including:

• On the picket line;
• Towards managers;
• Between employees; and
• On social media.

The decision reverses the prior Board's 2020 decision in General Motors LLC, which made it easier for employers to sanction misconduct that takes place as part of protected activity by applying the same discipline standards as they normally would, provided the discipline was not motivated by anti-union animus.

In overruling General Motors, the Board explained that labor disputes are often heated, and reaffirmed the principle that employees must be given some leeway for their behavior, while engaging in protected concerted activity, in order to safeguard their statutory rights. The Board majority noted that "no federal appellate court has ever held that the NLRA 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."

"The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers' rights under the National Labor Relations Act," said NLRB Chair Lauren McFerran. "To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity - not as if it occurred in the ordinary workplace context."

Dissent Says Decision Protects Egregious Employee Misconduct

Member Marvin Kaplan, a member of the General Motors Board, dissented. He pointed out that the Board's traditional approach for evaluating these types of cases had resulted in seemingly arbitrary and, at times, unreasonable results. Kaplan expressed concern that the Lion Elastomer LLC II decision will require employers to continue to employ individuals who have engaged in abusive conduct - including conduct that would be a violation of Title VII and other federal law - for which any reasonable employer would have terminated the employee.

"If the past is any guide," said Kaplan, "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."