The NLRB Limits Employers' Ability To Control Employees' Offensive Speech in New Decision

On Aug. 12, 2021, National Labor Relations Board’s (Board) General Counsel (GC) Jennifer Abruzzo issued her first GC memorandum, identifying a laundry list of Trump-era Board decisions she sought to revisit, including the General Motors decision issued in 2020. 

The Board granted GC Abruzzo’s request on May 1, 2023, overruling General Motors in Lion Elastomers LLC and United Steel. In doing so, the Board rejected precedent previously decided by the Trump-era Board. The new standard provides considerable leeway to partake in “abusive conduct” during activity otherwise protected by Section 7 of the National Labor Relations Act (Act). As with other decisions involving Section 7 activity, the Board decision applies to employees who are represented by a union as well as to non-unionized workforces.

Section 7 grants employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” When employers take adverse action against employees for their abusive conduct during Section 7 activity, the relevant question identified by the Board in Consumers Power Co. is “whether the conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service.” Over the years, Board cases have further refined the Consumer Power standard.

Prior to General Motors, the Board employed three “setting-specific” tests to determine whether employers unlawfully took adverse action against employees for their abusive conduct in the midst of engaging in Section 7 activity: (1) the four-factor Atlantic Steel test governing employees’ conduct directed at management in the workplace; (2) the totality-of-the-circumstances test governing social-media posts and most cases involving communications between employees in the workplace; and (3) the Clear Pine Mouldings standard governing picket-line conduct. The Board’s application of these three tests over the years has tended to lean heavily in favor of employees and limited employers’ discretion to discipline. 

The General Motors Board endeavored to strike a balance between workers’ Section 7 rights and employers’ right to maintain order and respect by replacing the three setting-specific standards with the Board’s Wright Line mixed-motive test, which would apply in all cases involving employees’ abusive conduct in the course of Section 7 activity. Under Wright Line, the GC must sufficiently establish that an employer was motivated — at least in part — to take adverse action against an employee for engaging in protected activity, at which point the burden shifts to the employer to show that it would have taken the same disciplinary action even in the absence of the protected activity. 

By overruling General Motors in Lion Elastomers, the Board revived its employee-friendly, setting-specific standards and did away with the Wright Line mixed-motive test in cases involving discipline for employees’ abusive conduct during Section 7 activity. The Board’s ruling in Lion Elastomers reembraces the notion that employers must tolerate employee outbursts during otherwise-protected activity because disputes over wages, hours, and working conditions are likely to cause friction and elicit explosive responses. The decision also displayed the Board’s willingness to flex its nascent consequential damages remedy established in the Thryv, Inc. decision by ordering the employer to compensate the discharged employee for any direct or foreseeable pecuniary harms the employee incurred as a result of their discharge. Following Lion Elastomers, employers should exercise discretion in cases of employee outbursts while engaging in an activity otherwise protected by the Act. 

Consult Taft’s Employment and Labor Relations attorneys for up-to-date guidance on this and other Board decisions. 

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