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On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision that changes the standards relating to discipline or discharge of workers who cross the line with offensive or abusive conduct while engaging in activity protected by the National Labor Relations Act (NLRA).

In Lion Elastomers LLC II, the Board reversed its 2020 ruling in General Motors LLC, and returned to “various setting-specific” standards for determining when discipline or discharge is lawful for employee misconduct during otherwise protected concerted activity under Section 7 of the NLRA. The Board held that 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.”

Quick Hits

  • The NLRB reversed a 2020 ruling that had adopted a burden-shifting test for when an employer has lawfully disciplined or discharged an employee for offensive or abusive conduct.
  • This new ruling may complicate disciplining or discharging workers for offensive or abusive outbursts in the context of NLRA-protected activity.
  • The Board holds that prior “setting-specific” tests must be applied.


Employers are often confronted with situations in which an employee engages in an outburst or abusive conduct during otherwise protected concerted activity—for example, the use of profane, sexually harassing, or racially inappropriate statements during collective bargaining negotiations, on a social media post, or on a picket line. For many years, such outbursts were evaluated under multiple, slightly different tests tied to the setting of the outburst.

The NLRB, in a 2020 decision, harmonized its approach to such outbursts and held, in General Motors, that one consistent standard should be applied to all cases involving abusive context in the course of Section 7 activity. In General Motors, the Board adopted the Wright Line test for such disciplines or discharges—which focuses on the motive of the employer in taking adverse action. Under Wright Line, employers generally can meet their burden by demonstrating that they would have treated the employee the same whether or not they were engaging in NLRA-protected activity.

The Decision

In its decision in Lion Elastomers LLC II, the NLRB overruled General Motors and held that various setting-specific standards must, again, be applied to determine whether a relevant disciplinary action is a violation of the NLRA. The new (old) standards are as follows:

  1. Employee conduct toward management in the workplace:

Such conduct should be evaluated under Atlantic Steel, which has a four-factor test that the Board will review to determine whether an employee’s conduct during Section 7 activity loses the protection of the Act: “(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.”

  1. Employee posts on social media and most conversations among employees in the workplace:

Such conduct will be evaluated under a totality of the circumstances test, considering all the relevant surrounding context.

  1. Picket-line conduct:

Such conduct will be evaluated under Clear Pine Mouldings, with an analysis of whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.

Importantly, under all of the operative setting-specific standards, the first step of the analysis requires an evaluation of whether an employee or employees engaged in Section 7 activity (i.e., concerted activity for the purpose of collective bargaining or other mutual aid or protection).

In the Lion Elastomers II decision, the Board rejected the view of Member Marvin Kaplan, who filed a dissenting opinion stating that setting-specific tests may lead to inconsistent results. The Board also challenged the dissent’s objection that setting-specific tests that do not take an employer’s motive into consideration, may impose legal obligations on employers that conflict with their “legal duties to protect employees from discrimination on the basis of protected characteristics—including race, color, religion, sex, national origin, age, and disability—as set forth in Federal, state, and local antidiscrimination laws.”

Indeed, while the Board acknowledged that the NLRA must accommodate other federal statutes, the Board also emphasized that other federal statutes must accommodate the Act and stated that there was no “obvious or inevitable conflict … between the Board’s approach … and Federal antidiscrimination law” because, in many instances, employee outbursts will not rise to the level of discriminatory changes in the terms and conditions of employment. Ultimately, the Board indicated that such concerns can be addressed in appropriate future cases to the extent there is a possible conflict, and did not issue any instructions or guides to employers that seek to navigate such tensions.

Key Takeaways

The Board’s decision in Lion Elastomers LLC II may mark a step backward for employers in terms of dealing with offensive or abusive conduct that goes beyond the bounds of proper workplace conduct (i.e., maintaining a workplace free from violence, harassment, and discriminatory conduct) simply because the conduct arguably occurs in the context of exercising protected activity. Employers may now, once again, be in a difficult position in which they choose to either discipline or discharge a worker for such misconduct or do nothing and thereby implicitly condone the behavior.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor NLRB developments and will provide updates on the Traditional Labor Relations blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.


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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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