NLRB Protects Employees from Discipline for Misconduct

Can an employer fire or discipline an employee for using profanity, abusive language, or even racist statements or threats during a union campaign or on a picket line? Such conduct would be grounds for termination or the basis for discipline in any other context. However, on May 1, 2023, in the latest in a series of employee-friendly decisions, the National Labor Relations Board (the “Board”) significantly curtailed employers’ ability to discipline such misconduct. Specifically, misconduct such as racist remarks, harassing statements, misogynistic insults, and profanities may be immune from discipline if occurring during activity otherwise protected under the National Labor Relations Act (the “NLRA”). The new decision, Lion Elastomers, LLC, II, 372 NLRB No. 83, reverses a decision from the Trump Administration that focused on the employer’s motive in imposing discipline, not on the context in which the misconduct occurred. And the decision creates a tension, if not outright conflict, between the employer’s obligation to maintain a harassment-free and discrimination-free workplace and the employee’s right to engage in “protected concerted activity” under the NLRA.

Employers attempting to address employee misconduct towards supervisors during union organizing, in social media posts, or similar activity now must make decisions based on a multi-factor, amorphous test, with considerable risk the decision may in hindsight be found unlawful.

Background: “Section 7 Rights”

Under Section 7 of the NLRA, employers may not discipline employees for participating in protected concerted activity. That activity can include discussing with other employees (or with outside union organizers) their terms and conditions of employment, such as wages, schedules, work duties, benefits or working conditions. The protection also applies to union organizing activity, including soliciting other employees to support a union, and to statements made during collective bargaining sessions and in grievance proceedings under collective bargaining agreements.  The Board has flip-flopped in defining the test to determine when misconduct is protected (or loses protection) during otherwise protected Section 7 activity.

When deciding whether such misconduct is protected, the Board has historically emphasized the context and severity of the misconduct. However, in July 2020, the Board dialed back protections for employees. In General Motors LLC, the Board held the company did not violate the NLRA when it terminated an employee for uttering the F-word and racially derogatory statements during meetings between management and union committeepersons. The Board acknowledged that discussions during such meetings generally constitute protected Section 7 activity. However, finding that the employee’s conduct was not protected, the Board focused on whether the employer was motivated to curb disruptive and otherwise intolerable behavior, rather than the setting and severity of the misconduct.

Lion Elastomers LLC II

In Lion Elastomers LLC II, the Board, now composed of a 3-1 majority of Democratic members, reverted to its prior “setting-specific” standard, shifting the focus from the employer’s motive back to the context and severity of the employee misconduct. Under this revived approach, the Board found the employer, a unionized, major rubber manufacturer, violated the NLRA by disciplining and discharging an employee for an angry outburst directed personally to a supervisor during a safety meeting.

The Board, over the dissent of the lone Republican member, reasoned that “heated or exuberant expression and advocacy,” and in turn misconduct, naturally accompanies Section 7 activity. Therefore, the Board majority concluded that at least some misconduct must be protected in order for employees’ Section 7 rights to be protected. To balance employees’ Section 7 rights and employers’ interest in maintaining order and a civil workplace, the Board restored its pre-General Motors “settings-specific” standards.

The Setting-Specific Standards

Employers must consider the specific misconduct and the Section 7 activity at issue when determining whether the misconduct is protected:

1. Employee misconduct during discussions with management, including outbursts in the course of these discussions, may be protected depending on the following four factors: (1) where specifically the discussion occurred; (2) the discussion’s subject matter; (3) the nature of the outburst; and (4) whether an unfair labor practice provoked the outburst.
2. Employee misconduct involving social media posts and in-person conversations among non-supervisory employees may be protected under a totality-of-the circumstances analysis.
3. Misconduct on a picket line may lose protection if the misconduct reasonably tends to coerce or intimidate non striking employees.

What This Means for Employers

The revival of the setting-specific standards means the NLRA may protect misconduct that otherwise warrants discipline, or even termination, if the misconduct occurs during concerted activity. Such protections apply regardless of the employer’s motivation towards the underlying conduct. An employer merely attempting to maintain a civil or harassment-free workplace—with no intention of stifling employees’ Section 7 rights—may inadvertently commit an unfair labor practice. Since misconduct may include personal insults, racially insensitive remarks, or sexist comments, employers will be at risk when imposing discipline in such situations. And, in a non-union workplace, it may not always be apparent to supervisors, human resource personnel, or managers whether “Section 7 activity” is occurring at all.  In some cases, the offensive conduct has occurred in online postings, not during obvious union-organizing activity or in meetings with union-represented employees.

To best ensure compliance with the NLRA and maintain a peaceful, inclusive workplace, contact your local Quarles attorney, or

• Judi Williams-Killackey: (414) 277-5439 / judi.williams@quarles.com
• Olivia DeScala: (239) 659-4029 / descala@quarles.com
• George S. Howard, Jr: (619) 243-1577 / george.howard@quarles.com