NLRB Makes it More Difficult for Employers to Punish Workers for Picket Line Conduct, Other Union Activity
In Lion Elastomers LLC II, 372 NLRB No. 83 (2023), the National Labor Relations Board overruled a bad anti-Union decision from 2020 and restored the long-established “setting-specific” standard for evaluating cases where employees are disciplined for alleged misconduct that occurs while the worker is engaged in protected activity.
Under the “setting-specific” standard, the Board evaluates the severity of an employee’s misconduct and the context in which it took place under three different tests:
1. Employee conduct toward management in the workplace is evaluated under Atlantic Steel, which looks at the place of discussion, subject matter of discussion, nature of employee’s misconduct, and whether the misconduct was provoked by an employer’s unfair labor practice. In Lion Elastomers, the Board applied this standard and held that the employer acted unlawfully when it disciplined a worker for allegedly making false statements during the grievance process.
2. Employee posts on social media and conversations among employees in the workplace are evaluated under the totality of the circumstances test, pursuant to the Board’s Pier Sixty decision, considering the relevant surrounding context.
3. Picket-line conduct is evaluated under Clear Pine Mouldings, with an analysis of whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.
Under the prior Trump-Board standard, the “setting” in which an employee’s alleged misconduct took place did not matter—all an employer needed to show was that they had a “legitimate business reason” for the discipline. But Lion Elastomers makes it more difficult for employers to discipline workers who are engaged in protected activity, such as discussing a grievance with their boss on the shop floor, posting about working conditions on social media, or walking a picket line.
The Board recognized that employees must be given some leeway for their behavior while engaging in protected concerted activity in order to safeguard their statutory rights.
For more information, please contact your labor law counsel.
By Sara Zollner