Board Returns to Traditional Standards for Evaluating Employee Misconduct During Protected Concerted Activity

Today, the National Labor Relations Board issued a decision in Lion Elastomers LLC II, overruling the prior Board’s decision in General Motors LLC 369 NLRB No. 127 (2020), and 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 General Motors Board had rejected those traditional standards, which focus on the severity of the employee’s misconduct and the context in which it took place. Instead, the prior Board adopted the Wright Line standard, which makes it easier for employers to sanction misconduct that takes place as part of protected activity. In overruling General Motors, the Board noted that labor disputes are often heated, as the Supreme Court has recognized. The Board reaffirmed the principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, in order to safeguard their statutory rights. No federal court has ever rejected any of the three setting-specific standards. They are: (1) the Atlantic Steel test, which governs employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings standard, which governs picket-line conduct. In its original decision, Lion Elastomers LLC, 369 NLRB No. 88 (2020), the Board had applied the Atlantic Steel test to find that the employer had violated the Act. After General Motors issued, the Board asked the United States Court of Appeals for the Fifth Circuit to remand the case so that the Board could determine the effect of its intervening decision. Today, consistent with its overruling of General Motors, the Board reaffirmed its original Decision and Order. “The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers’ rights under the National Labor Relations Act,” said Chairman Lauren McFerran. “To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity—not as if it occurred in the ordinary workplace context.” Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.