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The National Labor Relations Board has been repeatedly asked to determine whether employers have unlawfully discharged or otherwise disciplined employees who had engaged in abusive conduct in connection with activity protected by Section 7 of the National Labor Relations Act.

Notably, the legal standard for making this determination has been radically changed twice, in the last few years.

In a July 2020 decision issued in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the National Labor Relations Board modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements – including profane, racist, and sexually unacceptable remarks – in the course of activity otherwise protected under the National Labor Relations Act (Act).

In that case Charles Robinson worked as a union committeeperson at the automotive assembly facility in Kansas City, Kansas. He was suspended for three separate incidents of abusive conduct. In the first incident, Robinson yelled and cursed at a manager during a conversation about employee training. In the second incident, Robinson made racially offensive comments during a meeting with managers and other union representatives. In the third incident, Robinson played sexually explicit and racially offensive music loudly during a meeting with managers and other union representatives.

The NLRB held that the union representative’s conduct was not protected by the National Labor Relations Act (NLRA) because it was “so egregious” that it outweighed the employee’s right to engage in protected concerted activity.

The standard announced in General Motors replaced a variety of setting-specific standards – one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings). These tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act. They often resulted in reinstatement of employees discharged for deeply offensive conduct.

This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.

Chairman Ring was joined by Members Marvin E. Kaplan and William J. Emanuel.

However In Lion Elastomers, 372 NLRB No. 83 (2023) the National Labor Relations Board overturned this recent Board precedent from the previous Trump administration Board and reinstated the use of a trio of context-specific standards for determining whether an employer violates the Act by disciplining an employee for abusive conduct.

While the Lion Elastomers case was pending, the Board issued General Motors on July 21, 2020. Following the issuance of General Motors, the Board filed an unopposed motion with the Fifth Circuit, asking the court to “remand the instant case to determine whether General Motors affects the Board’s analysis in this case.” On June 15, 2021, the court granted the Board’s motion.

After remand, NLRB reversed the General Motors decision. It said “We have carefully reviewed the statements of position and the General Motors decision. We have decided to overrule General Motors and to return to earlier Board precedent, including Atlantic Steel, applying setting- specific standards aimed at deciding whether an employee has lost the Act’s protection.”

In justifying this reversal, the Biden administration board said “General Motors marked a sweeping change in Federal labor law. The Board reversed four decades of unbroken precedent: Atlantic Steel was decided in 1979; Clear Pine Mouldings, in 1984. But, the policy rationale that informs those decisions goes back much farther in the history of the Act. More than 35 years ago, the Board observed that it had ‘long held . . . that there are certain parameters within which employees may act when engaged in concerted activities.’ Consumers Power Co., 282 NLRB 130, 132.”

And “the General Motors Board broke sharply with well- settled precedent, but its reasons for abandoning the set- ting-specific standards governing employee misconduct committed during Section 7 activity are unpersuasive.”

“We are not persuaded by the claim of the General Motors Board that the setting-specific standards are unacceptable because they assertedly yielded “unpredictable” results.”

“Finally, we reject the claim of the General Motors Board that the setting-specific standards ‘penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace.’ “

The dissenting opinion in Lion Elastomers by Member Marvin E. Kaplan noted “Today, despite the fact that it seems unlikely that the application of General Motors would affect the outcome of this case, and notwithstanding the serious due process concerns involved, my colleagues do not even consider that approach. Rather, they reflexively scrap the Board’s carefully considered change in direction without giving it time to prove its worth.”

Lion Elastomers applies retroactively to all “abusive conduct” cases currently pending. Employers now have two standards.