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May 2, 2023
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Now more than ever, it seems that employees are willing to express themselves.  While open communication with and among employees is usually a good thing, sometimes an employer’s rules are broken in the process.  A worker might call her supervisor a nasty name while complaining about her production team’s overtime assignments.  An employee could use profanity to describe working conditions in a social media post in which he also asks his co-workers to join a labor union. A striking employee may threaten a company executive while picketing.

In such cases, an employer is likely to consider disciplining employees for breaking its rules while otherwise engaged in activity protected by the National Labor Relations Act. Nearly three years ago, the NLRB announced that it would apply the same test when determining whether disciplinary action is lawful, regardless of the context in which the employee’s misconduct occurred.  In General Motors, LLC, the Board held that in order to prove that disciplinary action violates the Act, an employee was required to show that:

1. the employee engaged in Section 7 protected activity;
2. the employer knew of that activity; AND
3. there is a causal connection between the discipline and the Section 7 activity.

If an employee met this initial burden, an employer could still avoid liability by proving that it would have taken the same action in the absence of protected activity.  Our discussion of General Motors, LLC can be found here.  Many employers welcomed this universal test, as it standardized the law regardless of the context in which the employee’s misconduct happened.  But, alas, the General Motors standard is no more.

On May 1, the Board issued its ruling in Lion Elastomers LLC II. There it overruled General Motors in favor of applying setting-specific tests to evaluate the propriety of employee discipline.  Now, the setting of an employee’s misconduct once again determines the standard by which disciplinary action will be judged.  The setting-specific tests are as follows:

First, when discipline arises out of an employee’s conduct toward management in the workplace, the Board will apply the test originally established in Atlantic Steel.  That test considers the following four factors:

1. the place of the interaction between employee and management;
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.

Next, when discipline arises out of an employee’s misconduct on social media or while interacting with a co-worker in the workplace, the Board will apply its “totality of the circumstances” test without regard to any particular factor.  This test was originally enunciated in Pier Sixty, LLC.

Finally, when discipline arises out of an employee’s misconduct on the picket line, the Board will again consider the Clear Pine Mouldings standard.  Under that test, the Board examines the totality of the circumstances to assess whether non-striking employees reasonably would have been coerced or intimidated by the misconduct.  If so, discipline is proper.

As the current NLRB continues to unwind many of the employer-friendly rules established by the previous Board, employers must now remember that context matters when disciplining employees for conduct that occurs during otherwise protected activity.  One size no longer fits all.

© 2023 McNees Wallace & Nurick LLC
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