On May 1, 2023, the National Labor Relations Board issued a decision in Lion Elastomers LLC II, which overruled the Board’s earlier decision in General Motors LLC, 369 NLRB No. 127 (2020), and rejected Trump-era precedent that had made it easier for employers to discipline workers who make profane, harassing or discriminatory comments in the course of a workplace dispute. In its statement, the NLRB described its decision as “returning to the long-established ‘setting-specific’ standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during activity otherwise protected by the National Labor Relations Act” (the “NLRA” or the “Act”).
The decision came in a case involving Lion Elastomers LLC, a Texas-based synthetic rubber manufacturer, that disciplined and ultimately terminated the employment of a worker in 2017 after he engaged in a heated exchange with managers about working conditions. The employer claimed the worker’s conduct was so offensive that the firing was warranted, but the Board disagreed and ordered the company to reinstate him. The employee petitioned for review of the Board’s Order with the United States Court of Appeals for the Fifth Circuit. After the Board’s issuance of the General Motors decision, the Fifth Circuit, at the Board’s request, remanded the matter to the Board.
In overruling General Motors in a lengthy majority opinion, the two-member majority noted that labor disputes are “often heated,” and reaffirmed the principle that employees engaged in protected concerted activity must be permitted some leeway for impulsive behavior, or other misconduct, in order to safeguard their statutory rights. It emphasized that the Act “has always been understood to recognize that employers have a legitimate interest in maintaining order and respect in the workplace,” but that the Act also “authorizes the Board to balance that interest against employees’ Section 7 rights.” Lion Elastomers LLC, Case Nos. 16–CA–190681, 16–CA–203509, and 16–CA–225153, at 11. Accordingly, the Board “referees the exercise of protected activity under the Act” – including determining how to weigh an employee’s Section 7 rights against the employer’s right to regulate employee conduct. Id. And, under these circumstances, this Board found, conduct during protected concerted activity must be evaluated in the context of that activity, and not as if it occurred in the context of ordinary workplace conduct.
Member Kaplan dissented to the majority’s ruling, expressing concern that the Board’s decision would “require employers to continue to employ individuals who have engaged in such abusive conduct any reasonable employer would have terminated them for that conduct.” Id. at 18. He cited to several prior decisions in which the NLRB had found protected conduct which involved racial epithets, profane language, and personal attacks. Id. In so doing, he echoed concerns raised by employers and industry groups that this revived regime would force employers to choose between violating labor law by disciplining workers, or foregoing discipline and violating laws requiring them to address workplace discrimination and harassment.
Employers should be aware of this return to increased protection for employees engaging in activity protected under the NLRA, and take care to weigh potential discipline for employee conduct against those NLRA protections. We will continue to monitor this development, including any likely appeal to the Fifth Circuit.
For further information, please contact:
Kris D. Meade, Partner, Crowell & Moring
kmeade@crowell.com
