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NLRB reverts to earlier standards for evaluating employee misconduct

A recent NRLB decision has returned to long-established “setting-specific” standards in cases where employees are disciplined or discharged for misconduct that takes place during activity that is otherwise protected by the National Labor Relations Act.

These standards center around how severe the employee’s misconduct was and the context in which it happened.

On May 1, the NLRB issued a decision in Lion Elastomers LLC II, overruling the prior Board’s decision in General Motors LLC (369 NLRB No. 127 (2020)).

The earlier ruling had rejected those traditional standards. Instead, the prior Board adopted the Wright Line standard, which makes it easier for employers to sanction misconduct that occurs as part of protected activity.

In reversing the General Motors decision, the Board noted that labor disputes are often intense and said that employees must be allowed some leeway for how they act while engaging in protected concerted activity to ensure that their rights under the NLRA remain protected.

In its original decision in Lion Elastomers LLC (369 NLRB No. 88 (2020)), the Board had applied the Atlantic Steel test — a “setting-specific standard” that governs employees’ conduct towards management in the workplace — and found that the employer had violated the Act.

After General Motors came down, the Board asked the 5th U.S. Circuit Court of Appeals to remand the case to allow it to decide the effect of its intervening decision.

This month, the Board reaffirmed the earlier decision.

“The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers’ rights under the National Labor Relations Act,” said NLRB Chairman Lauren McFerran. “To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity not as if it occurred in the ordinary workplace context.”

NLRB Members Gwynne Wilcox and David Prouty joined Chairman McFerran in issuing the decision. Member Marvin Kaplan dissented.