The welcome shift in approach, announced in the Board’s latest Lion Elastomers decision, restores the approach adopted by the Board in its 2020 General Motors decision. Under the restored standard, the General Counsel must show discriminatory motivation against the protected conduct where a discipline or discharge decision involves abusive or offensive conduct, which most employers do not tolerate under equal employment or general civility and professionalism rules.
The decision also replaces the patchwork of different misconduct standards that had previously applied depending on the circumstances, bringing those cases back under a single discrimination framework.
THE BOARD’S SHIFTING APPROACH TO WORKPLACE MISCONDUCT
The Board has repeatedly confronted the tension between shielding employees who engage in activity protected by Section 7 and allowing employers to maintain order and compliance with other workplace obligations, including antiharassment and antidiscrimination obligations. Section 7 generally protects employees who join together—or seek group support—to improve pay, hours, safety, or other working conditions, with or without a union.
Protected activity can arise in any number of workplace settings, from the picket line to tense or confrontational workplace exchanges between employees and management. Throughout the years, the Board applied different standards depending on the circumstances and often sided with employees who committed misconduct in the course of their protected activities. Conduct directed at management in the workplace fell under the nebulous Atlantic Steel standard, with four factors that could easily be applied to shield the employee from adverse action.
Certain social media posts and employee conversations were reviewed under a complex totality-of-the-circumstances test, while picket line misconduct was subject to a separate standard that routinely allowed picketers and strikers to engage in extreme, even discriminatory, conduct that flouted equal protection laws.
The Board excused increasingly outrageous conduct under these standards. For example, it found that calling a supervisor a “stupid ass” or a company president a “son of a bitch” could not subject the employee to discipline because the statements were protected conduct. It also found that pushing, shoving, and swearing did not necessarily justify an employer’s refusal to deal with a union representative. Mocking African American employees on the picket line, with discriminatory and harassing remarks that clearly violated US Equal Employment Opportunity Commission standards, was deemed acceptable and otherwise “protected” behavior under labor law.[1]
In 2020, the Board changed course in General Motors. Rather than continuing to assess whether misconduct lost protection under different context-dependent tests, the Board directed that these cases be analyzed under the familiar Wright Line framework used in discrimination cases. The central question then became whether the employer acted because of the employee’s protected activity or because of the misconduct.
Under the Write Line test, the General Counsel must show protected activity, employer knowledge of that activity, and discriminatory motivation. The employer can then avoid liability by showing that it would have imposed the same discipline even absent the protected activity.
The Board, during the Biden administration, preferred the prior multi-test standards and overruled General Motors in 2023, restoring the earlier standards. As we explained in our 2023 LawFlash, NLRB Returns to Liberalized Section 7 Protection for Workplace Misconduct Incidents, the governing tests once again depended on the circumstances in which the misconduct occurred and generally shielded employees from adverse action for their misconduct.
WHY GENERAL MOTORS IS BACK
The Board’s decision overturning General Motors was Lion Elastomers II, 372 NLRB No. 83 (2023). Using Lion Elastomers to change precedent was procedurally vulnerable because the case was before the Board on remand from the Fifth Circuit during the Biden administration. In remanding the case, the Fifth Circuit instructed the Board to apply the new General Motors standard. Instead, in 2024, the Board used the occasion to overrule General Motors.
On the second appeal of that decision, the Fifth Circuit held that the Board exceeded the scope of the remand by overruling General Motors rather than applying it to the case, as the court had instructed in the prior remand.[2] The court also held that the Board denied the employer due process by changing the governing standard without giving it an opportunity to address that issue. The court therefore vacated Lion Elastomers II and sent the case back with instructions to apply General Motors.
On remand, the three Republican members on the Board concluded that the 2023 change in law “did not survive judicial vacatur” and that General Motors remains “extant Board precedent” not only in Lion Elastomers but in other cases involving offensive conduct related to protected activity. The lone Democratic member on the Board, Member Prouty, dissented.
NEXT STEPS
Employers should take the following steps based on the Board’s latest Lion Elastomers decision:
- Review pending unfair labor practice charges, complaints, administrative law judge proceedings, and Board cases involving discipline for abusive or inappropriate conduct during otherwise protected activity. General Motors directed that the discrimination test be applied retroactively to pending cases involving the three special tests adopted over the prior decades.[3]
- Consider whether existing evidentiary records in pending cases need to be supplemented. A case developed under Atlantic Steel or another context-dependent test may not contain the evidence most relevant for the discrimination test, particularly evidence bearing on discriminatory motive, comparable misconduct, and consistent treatment. The Board’s decision to allow the administrative law judge in Lion Elastomers to reopen the record if necessary highlights that issue.
- Review workplace conduct, antiharassment, antidiscrimination, and civility policies, along with how those policies are enforced. Consistent application will be important. Contemporaneous documentation of the reasons for discipline, the decisionmakers involved, and comparable instances of misconduct may also take on greater significance under the General Motors/Wright Line framework.
For now, the Board has returned to a framework that focuses on whether an employer acted with discriminatory motive and applied its rules consistently, rather than relying on ill-defined tests to determine when misconduct is egregious enough to forfeit statutory protection. This approach should not only make it easier for employers to enforce workplace antidiscrimination, antiharassment, and civility standards but also to defend unfair labor practice charges arising from employees’ violations of those standards.
