HR Alert: Offensive Workplace Behavior under the National Labor Relations Act

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If you’re a private employer with unionized employees, the past few years may have felt tumultuous. Whether you keep a watchful eye on changes in labor law or it all feels like a blur, a recent decision by the National Labor Relations Board (NLRB) should be a return to long-held norms. Lion Elastomers LLC II, published on May 1, 2023, announced the NLRB’s reversion to prior standards concerning when an employer may discipline an employee acting in pursuit of a protected activity. In overruling a very employer-friendly decision from July of 2020, the NLRB revisited a case originally decided in May of 2020.

The first Lion Elastomers LLC involved a union’s alleging a violation of section 8(a)(1) of the National Labor Relations Act (NLRA). An employee and union representative, Joseph Colone, engaged in verbal altercations with members of management during meetings on two occasions. Colone had become agitated and confrontational, first, while being questioned about recent grievances he had filed on behalf of other employees, and second, while making complaints related to working conditions. Colone ultimately was terminated, and Lion Elastomers cited his “inflammatory and insulting language” along with what the employer claimed were intentional errors in several grievances Colone had filed as reasons for his termination. The employer argued, to no avail, that this insulting language lost Colone his protection under the NLRA. In assessing this claim, the NLRB applied longstanding precedent and found that Lion Elastomers’ actions constituted unfair labor practice in violation of the NLRA, and the company appealed.

First, as a useful reminder, section 7 of the National Labor Relations Act grants employees the right to self-organize, form, join, or assist labor organizations, to collectively bargain, and to engage in concerted activities for such a purpose. Under NLRA section 8(a)(1), it’s an unfair labor practice for employers to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”

The Precedent: “Setting-Specific” Standards. When an employee engages in activity that’s protected under the NLRA, such as filing grievances, what occurs in pursuit of that activity generally is protected as well. What this means is that the grievances or the employee conduct usually can’t form the basis for employee discipline. However, employees may lose this protection when an outburst was “sufficiently opprobrious.” This so-called Atlantic Steel standard evaluates whether words or actions towards management were appropriate, using four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst possibly was provoked by the employer’s unfair labor practice. To be clear, the bar for finding conduct to be opprobrious enough to lose the protection of the NLRA is particularly high – speech can be loud, challenging, and even speech containing profanity and implying violence may be protected if other considerations suggest the statements are protected. Indeed, this standard was the same one used in the first Lion Elastomers case to determine that Colone’s speech could not be a reason for his discharge as it was not sufficiently opprobrious and occurred in the course of protected activity as union representative.

This multi-factor test is one of three different “setting-specific” standards that historically have been used by the NLRB to assess whether an employer unlawfully disciplined or discharged an employee for alleged opprobrious conduct. The two other setting-specific standards were the totality-of-the-circumstances test, which the Board applied to social media posts or conversations between employees, and the Clear Pine Mouldings standard, which related to picket-line conduct.

General Motors.  These standards were in use for some time – in fact, Atlantic Steel was decided in 1979 – but were completely overruled by the NLRB’s 2020 decision General Motors. Issued less than two months after the first Lion Elastomers decision, the General Motors decision held that such standards produced highly-inconsistent results, they made analysis of abusive conduct inseparable from protected activities, and finally, that the ultimate question should be whether the employer was motivated by animus against a protected activity when it disciplined the employee. The NLRB asserted that in “dual-motive” cases (essentially cases where the unions claims that discipline was related to anti-union animus and the employer claims it was motivated by legitimate reasons): “if the [claimant] fails to show that protected speech or conduct was a motivating factor in an employer’s decision to impose discipline, or if [he] makes that showing but the employer shows that it would have issued the same discipline for the unprotected, abusive speech or conduct even in the absence of the Section 7 activity, the employer appears to us to be well within its rights reserved by Congress.”

Obviously, for employers, this was a win. Rather than emphasizing the context in which speech occurred, the NLRB took the employer-friendly stance that offensive conduct need not be tolerated by an employer simply because it occurred in the course of union activities. By admitting employee discipline was related to abusive conduct, an employer no longer would be conceding that it was discriminating against union activity.

Going Forward: Lion Elastomers 2.0 and the Impact on Employers.  On May 1, 2023, the NLRB had occasion to overrule the General Motors decision, and it chose to do so. Returning once more to setting-specific standards, the NLRB reconsidered Lion Elastomers and concluded that General Motors had been wrongly decided.

As a result, then, if you’re an employer subject to the NLRA, take note. As the NLRB stated, “[the National Labor Relations Act] imposes no obligation on employees to be “civil” in exercising their statutory rights.” So-called opprobrious conduct will once again be evaluated under setting-specific standards that consider where, when, and why the oppositional speech was taking place. However, do not let this stand as a complete deterrent to discipline in the face of abusive conduct by employees. Employers still have a valid interest in maintaining order and respect in the workplace; once again, the employer’s interest must be balanced against an employee’s interest in protecting section 7 rights. Stated differently, this high bar for discipline applies only where misconduct occurs in the pursuit of union activities.

Employers: you’re still entitled to take action against any misconduct that is unrelated to protected activities. And, finally, in any setting, abuse is not protected by the NLRA.

For questions about employee discipline, best practices for operating a respectful workplace, and any other employment-related issues, reach out to The Coppola Firm at 716.839.9700. We’re always happy to help.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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