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May 2, 2023
Yesterday, the National Labor Relations Board (NLRB) ruled that the context in which a worker’s conduct occurs is relevant in determining whether the law protects that conduct. See Lion Elastomers LLC, 372 NLRB No. 83. Specifically, if a worker is engaged in concerted activity, as defined by Section 7 of the National Labor Relations Act – e.g., contract negotiations, grievance meetings, walking a picket line as a striker, or discussing workplace issues with coworkers – their “heated or exuberant expression and advocacy” is more likely to be protected as opposed to when such “expression and advocacy” occurs in the ordinary workplace context.
Yesterday’s ruling reverses 2020 precedent in General Motors LLC, where the NLRB had concluded that the setting of a worker’s conduct is irrelevant because the fundamental issue in “abusive conduct” cases is the employer’s motive in taking adverse action against the worker. The NLRB has restored three tests that provide workers with some latitude for misbehavior: (1) Atlantic Steel,[1] where the NLRB applied a four-factor test to confrontations with managers that considers the place of the discussion, the subject matter of the discussion, the nature of the outburst, and whether the employer provoked it; (2) Clear Pine Mouldings,[2] where the NLRB considered whether non-strikers were coerced or intimidated; and (3) Pier Sixty,[3] where the NLRB held that profane or threatening social media posts about workplace issues should be analyzed based on the totality of the circumstances.
Marvin Kaplan, the Republican member of the NLRB, dissented, saying that the setting-specific tests allow workers to abuse bosses and colleagues.
Going forward, before taking adverse action against (e.g., terminating the employment of) a worker for conduct while engaging in concerted activity, employers should analyze the conduct in light of the circumstances.
This newsletter is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
[1] 275 NLRB 814 (1979).
[2] 268 NLRB 1044 (1984).
[3] 362 NLRB 505 (2015).
