NLRB Returns to Liberalized Section 7 Protection for Workplace Misconduct Incidents

The National Labor Relations Board’s recent decision in Lion Elastomers reinstated setting-specific standards to assess how employers respond to employee misconduct, including potentially profane, discriminatory, and harassing statements, thereby reopening competing statutory demands for employers between the National Labor Relations Act and equal opportunity employment requirements.

The National Labor Relations Board (NLRB or the Board) issued its decision in Lion Elastomers, 372 NLRB No. 83, on May 1, 2023.[1] The decision overruled General Motors LLC, 369 NLRB No. 127 (2020), and reinstated the setting-specific standards for assessing employer responses to “abusive conduct” by employees during their Section 7 activities.[2]

The Board majority explained that “there is a fundamental difference . . . between employee misconduct committed during Section 7 activity and misconduct during ordinary work.”[3] Lion Elastomers, the Board said, “ensures that adequate weight is given to the rights guaranteed to employees by Section 7 of the act, by ensuring that those rights can be exercised by employees robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.”[4]

In response to concerns that the Lion Elastomers decision could be an impediment to maintaining workplace civility, as well as a potential source of conflict between the NLRA and federal and state equal employment opportunity laws, the NLRB majority remarked that employers rarely have a legitimate interest to discipline or restrict Section 7 activity to meet those obligations.

THE PRIOR STANDARD

Under the 2020 General Motors decision, the NLRB explained that employees could exercise their full spectrum of NLRA rights without engaging in abusive misconduct, or making profane, discriminatory, or harassing statements. The Board correspondingly held that employers could respond to such misconduct, assuming there was no evidence of discriminatory motivation or treatment for the Section 7 activity, under the Wright Line analysis, which asks whether the employer had treated similar misconduct the same way. The General Motors Board then discarded the various setting-specific standards, including the multifactor test under Atlantic Steel.

As the standard used to assess employees’ conduct toward management in the workplace (as opposed to employee conduct on the picket line or on social media), Atlantic Steel considers four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice.

Cases applying Atlantic Steel had, at best, unpredictable outcomes, subjecting employers to the possibility of protracted litigation over disciplinary decisions regardless of good-faith motivation, workplace rules or standards, or federal or state equal employment laws.

THE DECISION

The NLRB majority in Lion Elastomers restored Atlantic Steel and earlier precedent applying the setting-specific standards.

This means that an employer’s disciplinary action against an employee for misconduct will be assessed based on the circumstances in which that misconduct arose:

• If the employee’s misconduct occurs during ordinary work and not in connection with Section 7 activity, the discipline will be judged based on the Board’s traditional Wright Line mixed-motive test.
• If the employee’s misconduct occurs in connection with Section 7 activities, the discipline will be judged based on one of the Board’s setting-specific standards, depending on the type of Section 7 misconduct.
  • If the employee’s Section 7 misconduct toward management occurs in the workplace (e.g., protesting a safety issue or in a grievance meeting), the four-part Atlantic Steel test applies.
  • If the employee’s Section 7 misconduct occurs on social media, the Pier Sixty test applies.
  • If the employee’s Section 7 misconduct occurs on a picket line, the Clear Pine Mouldings test applies.

Despite some informal indications prior to the Lion Elastomers decision that the Board understood the competing statutory demands on employers, the Lion Elastomers opinion concludes that the Board has no duty to reconcile the conflicting relationship between the NLRA’s protection of employee rights under Section 7 and the requirements of Title VII and other antidiscrimination laws. In support of that position, the Board quoted the US Supreme Court’s decision in Epic Systems Corp. v. Lewis: “[T]he ‘reconciliation’ of distinct statutory regimes ‘is a matter for the courts,’ not agencies.”[5]

The Board majority further asserted that the desire for, and policies promoting, a civil and cooperative workforce serve no legitimate justification to restrain Section 7 conduct, although the Board did concede employers’ general interest in “maintaining order and respect in the workplace”:

But just as Title VII is not “a general civility code for the American workplace,” neither is the National Labor Relations Act. It imposes no obligation on employees to be “civil” in exercising their statutory rights. And while the Act has always been understood to recognize that employers have a legitimate interest in maintaining order and respect in the workplace, it also authorizes the Board to balance that interest against employees’ Section 7 rights. Put somewhat differently, the Board—not employers—referees the exercise of protected activity under the Act.[6]

The Board’s lone dissenting member stated that “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.”[7]

PRACTICAL TAKEAWAYS

Employers seeking to maintain civility, cooperation, antidiscrimination, or antiharassment policies in the workplace could possibly face opposition from the NLRB should an employee or union file an unfair labor practice charge claiming that the employer’s policies or actions to promote such goals—and related legal compliance—restricted Section 7 activities to protest terms or conditions of employment or to engage in union organizing or collective bargaining.

Organizations wishing to be proactive against potential labor practice charges arising under Lion Elastomers can consider taking the following actions:

• Review/revise existing written policies surrounding workplace interactions and co-worker communications and link them to maintenance of order, respect, and production, as well as antidiscrimination and anti-harassment laws.
• Support the above with internal documentation demonstrating the necessity of such policies to promote collaboration among employees, in terms of both the observed positive effects after the policies were instituted and/or the observed negative effects where the policies were previously lacking.
• Review/revise antiharassment policies to provide examples of unacceptable conduct linked directly to potential legal liability, rather than generalized concerns or examples.
• Ensure sufficient legal review and input prior to applying such policies to employees where the situation may implicate Section 7 rights.
• Despite the Board’s statement that “motivation” and “comparators” do not directly impact the legal test going forward, create and/or maintain detailed records regarding policy enforcement to show good-faith consistency in application of the rules.
• Bearing in mind that Lion Elastomers did not actually involve profanity, abusive conduct, or legally actionable harassment, prepare to differentiate it from any future case involving the organization.