By Brian D. Pedrow and Shannon N. Attalla

On May 1, in its Lion Elastomers decision, the Board overruled Trump-era precedent (General Motors) that made it easier for employers to discipline workers for outbursts in the context of workplace activism and union-related activity.  The Board reinstated prior precedent (Atlantic Steel and its progeny) that provides more leeway for worker outbursts when engaging in activities protected under the National Labor Relations Act, reasoning that this context is different from ordinary workplace exchanges. 

Specifically, the Board reinstated three separate standards, each applicable to a different context.  In the context of employee misconduct during discussions with management, the Board reinstated Atlantic Steel’s four-factor test to determine if employee misconduct is severe enough to lose Section 7 protection.  Under this standard, the following four-factors are relevant: (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 the context of misconduct during coworker discussions or in making social media posts, the Board reinstated the “totality of the circumstances” test under Atlantic Steel.  

And, finally, in the context of misconduct on the picket line, the Board reinstated the Clear Pine Mouldings standard.  Under this standard, the Board considers whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct. 

Applying the Atlantic Steel standard to the facts at issue, i.e. an employee outburst during a safety meeting—during which the employee used a loud and frustrated tone, stated that another employee could “go ahead and leave,” and cut a supervisor off—the Board determined that the conduct at issue was not severe enough to lose the Act’s protections.  Accordingly, the Board ordered that the employer rehire the discharged worker and give him compensation for lost wages and benefits.

As a result, employers should consider each standard before taking action with respect to employee communications and misconduct in furtherance of work-related activism or union activity.  Ballard Spahr’s Labor and Employment Group regularly advises clients on matters concerning the NLRA, preparing separation agreements, and the intersection of these issues.