by Jenny Smiley
Employers and young lawyers alike should be aware of the National Labor Relations Board’s recent decision in Lion Elastomers, LLC II in which the NLRB reverted its rule regarding “abusive conduct” in the workplace back to pre-2020 standards.
On May 1, 2023, the NLRB published its decision in Lion Elastomers LLC II in which it decided to overrule its July 21, 2020 General Motors decision which eliminated (1) the four-factor Atlantic Steel test for employee’s conduct towards management in the workplace; (2) the totality-of-the-circumstances test for social media posts and employee conversations; and (3) the Clear Pine Mouldings standard for picket line conduct. The General Motors decision held that it would no longer apply various setting-specific standards to determine whether employers have unlawfully disciplined or discharged employees who allegedly engaged in “abusive conduct” in connection with activity protected by Section 7 of the National Labor Relations Act. The General Motors standard only looked at the employer’s motivation for the termination.
Under Lion Elastomers II, the conduct at issue—whether it is towards management, posted online, or on a picket-line—is again evaluated under these “setting-specific” standards. The NLRB reasoned that considering the setting of the conduct was important because “‘disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.’” In the NLRB’s view, misconduct in the course of a protected activity is treated differently than misconduct in the ordinary workplace setting that is unrelated to engaging in collective bargaining.
This standard makes it more perilous for employers to discipline or terminate employees for misconduct, especially conduct posted online, when it can be connected to a protected activity. The dissent’s concerns that the decision “will, once again, require employers to continue to employ individuals who have engaged in such abusive conduct any reasonable employer would have terminated them for that conduct” are a 2023 reality. On the other hand, under these new (previous) standards for evaluating abusive conduct in the workplace, employees gain more arguments regarding the circumstances of the comment or post to tie it to protected activity. Another side-effect of this decision may be that while employees are afforded more protections when advocating for better working conditions, other employees may be subjected to a hostile work environment as this abusive language or behavior is used.
On May 23, 2023, Lion Elastomers filed a petition for review of the NLRB’s decision in the U.S. Court of Appeals for the Fifth Circuit, so there will be more to come on this issue from the courts and as the NLRB changes politically.
 Section 7 of the National Labor Relations Act grants employees “the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
Jenny Smiley is a Senior Associate at Cobb Martinez Woodward, PLLC. She practices in the areas of employment and professional liability defense. For questions or comments, her email address is firstname.lastname@example.org.
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