Maintaining a Harmonious Workplace…With One Hand Tied Behind Your Back

The NLRB Limits Employers' Ability to Discipline Employees for Harassing, Abusive, Racially Offensive Conduct Occurring Amidst Protected Activity
Date   May 4, 2023

Executive Summary: On May 1, 2023, the National Labor Relations Board (NLRB or the Board) handed down a decision illustrative of its view that workers’ rights under the National Labor Relations Act (NLRA or the Act) hold a position of primacy among competing legal rights and obligations. The Board’s decision in Lion Elastomers LLC II addressed the all too frequent situation where an employee engages in abusive conduct (e.g., racial, homophobic, or gender-based epithets, or profane verbal attacks) while simultaneously involved in activity protected by the Act (e.g., complaining about workplace issues to management or on social media, grievance meetings, or collective bargaining). The Board’s holding limits employers’ ability to police offensive, abusive, and harassing conduct in the workplace and shields bad actors from discipline if their misconduct arises in the context of protected concerted activity.

Prior to 2020, the Board evaluated the legality of discipline resulting from such outbursts in the context of the employee’s protected concerted activity. In doing so, the Board applied three different tests: Atlantic Steel[1] for misconduct during Section 7 activity, generally; Clear Pine Mouldings, Inc.[2] for picket-line misconduct; and Pier Sixty, LLC[3] with respect to online conduct. Each of these standards evaluated the employee’s misconduct based on the setting where the outburst occurred and whether the underlying misconduct was sufficient to “[lose] the protection of the Act.” The Board’s context-specific standards did not consider an employer’s legal obligation to maintain a workplace free from discrimination and harassment or its interest in promoting workplace civility. Likewise, it did not consider the employer’s evenhanded application of discipline for similar conduct. Not surprisingly, these subjective standards yielded seemingly arbitrary and, at times, unreasonable results. Equally unsurprisingly, this standard received harsh criticism by reviewing courts.

The Board’s July 2020 decision in General Motors, LLC[4] disposed of all three of these standards. In General Motors, the Board opted instead to apply the time-tested Wright Line standard to determine whether the employee’s misconduct or the employer’s animus drove the decision to impose discipline. In applying Wright Line to employee outbursts occurring in the course of protected activity, the Board sought to strike a reasonable balance between employers’ obligations under Title VII and state FEP laws and employee rights under the NLRA. Employers applauded the decision as it allowed employers to evenhandedly discipline employees under their EEO policies, encouraged workplace civility, and provided continuity in the Board’s analysis of alleged interference with and discrimination arising from protected activity. Unlike the prior standards, the Wright Line test considered whether the employer would have taken the same action irrespective of the employee’s protected activity.

Now, less than two years later, the Board has flip-flopped in Lion Elastomers II. It spent less than three sentences addressing the facts at issue, focusing instead on its justifications for overturning General Motors. The decision reinstated the trio of subjective standards previously applied under Atlantic Steel, Clear Pine Mouldings, and Pier Sixty – standards principally focused on an employee’s exercise of rights under the NLRA and dismissive of an employer’s duty to protect its employees from discrimination and harassment. Though the Board acknowledged employers’ potential legal conflict when endeavoring to comply with both the NLRA and anti-discrimination laws, it dismissed such concerns on the grounds that an employee outburst, in and of itself, does not rise to the level of actionable discrimination. Ironically, General Motors involved an individual who had been suspended three separate times already for profane and racially offensive conduct. In the outburst that led to his termination, he threatened a manager with physical violence and loudly played racist, misogynist, and profane music to disrupt a grievance meeting. He was precisely the type of repeat offender whose conduct demands appropriate disciplinary action to ensure compliance with anti-discrimination laws.


[1] 245 NLRB 814 (1979).

[2] 268 NLRB 1083 (1980).

[3] 362 NLRB 505 (2015).

[4] 369 NLRB No. 127 (2020)

The Bottom Line

Under Lion Elastomers II, employers must now navigate a treacherous legal path when imposing discipline on employees who engage in abusive, profane, or discriminatory outbursts during union activity, during an organizing campaign, or during meetings concerning issues of mutual interest to employees (e.g., safety, profit sharing, workplace policies, etc.). To determine whether employee conduct during protected concerted activity loses the protection of the Act, the Board will consider: (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 the employer’s unfair labor practice. In cases concerning picket-line misconduct, the Board will consider whether, under all the circumstances, non-strikers reasonably would have been coerced or intimidated by the strikers’ picket-line misconduct. In cases involving employee social media activity or discussions among employees in the workplace, the Board will apply a subjective, “totality of the circumstances” test. Given the Board’s (and the General Counsel’s) ever-expanding definition of conduct constituting protected concerted activity, the Board’s holding in Lion Elastomers II will invariably force employers to choose between enforcing policies to ensure compliance with FEP/EEO laws and complying with the NLRA.  

Should you have questions regarding this Alert, please feel free to contact the author, Corey L. Franklin,, the Office Managing Partner in our St. Louis, Missouri office, and member of FordHarrison’s Labor Relations practice group. Of course, you can also contact the FordHarrison attorney with whom you usually work.