Is it ever OK to engage in profane, threatening, or abusive conduct at work? According to the National Labor Relations Board (NLRB), the answer is yes, under certain circumstances.
The NLRB has long held that employees are protected from discipline for engaging in such conduct, even if it is profane, threatening, or abusive, if it is done in the context of protected concerted activity. The Board has concluded this is necessary because “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” This logic has led the Board to fluctuate between two different standards for deciding whether misconduct should receive higher protections afforded by labor law. In its most recent decision, Lion Elastomers LLC II, 372 NLRB No. 83 (2023), the NLRB has reverted to more protective, setting-specific standards.
In 1979, the Board articulated what has become known as the Atlantic Steel test to determine whether “an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act.” The test requires a balancing of 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 was, in any way, provoked by an employer's unfair labor practice.
Later decisions developed setting-specific tests that went beyond the “outburst” context of Atlantic Steel. Whether abusive conduct on the picket line is protected depends on whether non-striking employees would have reasonably been coerced or intimidated by the misconduct. Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984). On the other hand, the test for social media posts dispenses with individual factors and subjects them to a totality-of-the-circumstances analysis. Pier Sixty, LLC, 362 NLRB 505 (2015).
In 2020, these setting-specific tests were overruled by the NLRB in General Motors, LLC, 369 NLRB 127 (2020). This standard ignored the setting and instead focused on the employer’s intent and whether the employer would have disciplined the employee without the presence of union activity. However, the decision in Lion Elastomers overruled the short-lived General Motors standard.
The Board’s decision in Lion Elastomers is another victory for workers' rights. It ensures that employees will be able to speak freely about their working conditions without fear of retaliation, even if they sometimes cross the line into abusive conduct. Employers should continue to tread carefully when assessing abusive conduct in the union environment. Such behavior will again be analyzed under the applicable context-specific test restored by the Lion Elastomers decision. Each of those tests allows greater latitude and protection for abusive employees.
If you are considering discipline of a unionizing employee or a bargaining unit member for abusive or inappropriate conduct, please reach out to the Employers Council Labor Relations department at LR@employerscouncil.org.
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