On May 1, 2023, the National Labor Relations Board issued a decision in Lion Elastomers LLC II, overruling General Motors LLC and returning to the long-established precedent of three different setting-specific standards for employees who are disciplined or discharged for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (e.g., employee activities related to employee’s hours, wages, and working conditions). The Board had previously made it easier for employers to sanction misconduct that takes place as part of protected activity. In overruling General Motors, the Board noted that labor disputes are often heated and the Board reaffirmed that employees must be given some leeway for their behavior while engaging in protected activity.
The three setting-specific standards are: (1) the Atlantic Steel test, which governs employee conduct towards management in the workplace; (2) the totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings standard, which governs picket-line conduct. Under the Atlantic Steel test, the Board will look to: (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. Under the Clear Pine Mouldings test, the Board will consider whether the misconduct was such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.
Lion Elastomers LLC & United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, Local 228, 372 NLRB No. 83 (May 1, 2023).
Note: Going forward, nonprofit organizations should be aware of these setting-specific standards when disciplining employees.