Introduction
Relevant case law
Parameters of workplace conduct


Introduction

On 1 May 2023, the National Labor Relations Board (NLRB) handed down a decision illustrative of its view that workers' rights under the National Labor Relations Act (NLRA) hold a position of primacy among competing legal rights and obligations. The board's decision in Lion Elastomers LLC II addressed the all too frequent situation where an employee engages in abusive conduct (eg, racial, homophobic, or gender-based epithets or profane verbal attacks) while simultaneously involved in activity protected by the Act (eg, complaining about workplace issues to management or on social media, grievance meetings or collective bargaining). The board's holding limits employers' ability to police offensive, abusive, and harassing conduct in the workplace and shields bad actors from discipline if their misconduct arises in the context of protected concerted activity.

Relevant case law

Prior to 2020, the board evaluated the legality of discipline resulting from such outbursts in the context of the employee's protected concerted activity. In doing so, the board applied three different tests pursuant to relevant case la, which included:

  • Atlantic Steel(1) for misconduct during Section 7 activity, generally;
  • Clear Pine Mouldings, Inc(2) for picket-line misconduct; and
  • Pier Sixty, LLC(3) with respect to online conduct.

Each of these standards evaluated the employee's misconduct based on the setting where the outburst occurred and whether the underlying misconduct was sufficient to "[lose] the protection of the Act." The board's context-specific standards did not consider an employer's legal obligation to maintain a workplace free from discrimination and harassment or its interest in promoting workplace civility. Likewise, it did not consider the employer's even-handed application of discipline for similar conduct. Not surprisingly, these subjective standards yielded seemingly arbitrary and, at times, unreasonable results. Equally unsurprisingly, this standard received harsh criticism by reviewing courts.

General Motors LLC case
The board's July 2020 decision in General Motors, LLC(4) disposed of all three of these standards. In General Motors, the board opted instead to apply the time-tested Wright Line standard to determine whether the employee's misconduct or the employer's animus drove the decision to impose discipline. In applying Wright Line to employee outbursts occurring during protected activity, the board sought to strike a reasonable balance between employers' obligations under Title VII and state FEP laws and employee rights under the NLRA. Employers applauded the decision as it allowed employers to even-handedly discipline employees under their equal employment opportunity (EEO) policies, encouraged workplace civility and provided continuity in the Board's analysis of alleged interference with and discrimination arising from protected activity. Unlike the prior standards, the Wright Line test considered whether the employer would have taken the same action irrespective of the employee's protected activity.

Lion Elastomers II case
Now, less than two years later, the board has flip-flopped in Lion Elastomers II. It spent less than three sentences addressing the facts at issue, focusing instead on its justifications for overturning General Motors. The decision reinstated the trio of subjective standards previously applied under Atlantic Steel, Clear Pine Mouldings, and Pier Sixty – standards principally focused on an employee's exercise of rights under the NLRA and dismissive of an employer's duty to protect its employees from discrimination and harassment. Though the board acknowledged employers' potential legal conflict when endeavouring to comply with both the NLRA and anti-discrimination laws, it dismissed such concerns on the grounds that an employee outburst, in and of itself, does not rise to the level of actionable discrimination. Ironically, General Motors involved an individual who had been suspended three separate times already for profane and racially offensive conduct. In the outburst that led to his termination, he threatened a manager with physical violence and loudly played racist, misogynist, and profane music to disrupt a grievance meeting. He was precisely the type of repeat offender whose conduct demanded appropriate disciplinary action to ensure compliance with anti-discrimination laws.

Parameters of workplace misconduct

Under Lion Elastomers II, employers must now navigate a treacherous legal path when imposing discipline on employees who engage in abusive, profane or discriminatory outbursts during:

  • union activity;
  • an organising campaign; or
  • during meetings concerning issues of mutual interest to employees (eg, safety, profit sharing or workplace policies).

To determine whether employee conduct during protected concerted activity loses the protection of the Act, the board will consider:

  • the place of the discussion;
  • the subject matter of the discussion;
  • the nature of the employee's outburst; and
  • whether the outburst was, in any way, provoked by the employer's unfair labour practice.

In cases concerning picket-line misconduct, the board will consider whether, in all the circumstances, non-strikers reasonably would have been coerced or intimidated by the strikers' picket-line misconduct. In cases involving employee social media activity or discussions among employees in the workplace, the board will apply a subjective, "totality of the circumstances" test. Given the board's (and the General Counsel's) ever-expanding definition of conduct constituting protected concerted activity, the board's holding in Lion Elastomers II will invariably force employers to choose between enforcing policies to ensure compliance with fair employment practice and EEO laws while complying with the NLRA.

For further information on this topic please contact Corey L Franklin at FordHarrison ​by telephone (407 418 2305) oremail ([email protected]). The FordHarrison website can be accessed at www.fordharrison.com.

Endnotes

(1) 245 NLRB 814 (1979).

(2) 268 NLRB 1083 (1980).

(3) 362 NLRB 505 (2015).

(4) 369 NLRB No. 127 (2020)