May 22, 2023
It will now be harder for employers to discipline or fire workers who display offensive conduct while engaged in activity protected under the National Labor Relations Act (NLRA), based on a May 1 ruling from the National Labor Relations Board (NLRB).
The NLRB overruled a 2020 decision, known as General Motors, which replaced three previous standards that applied to offensive conduct on the picket line, workers’ interactions with management and workers’ postings on social media and conversations with colleagues. Those previous standards protected some outbursts, depending on the severity of the misconduct and the context in which it took place.
The NLRB’s latest ruling reverts to those traditional three standards and comes from a case involving Lion Elastomers, a Texas-based synthetic rubber manufacturer that disciplined and fired a worker in 2017 after he got into a heated exchange with managers about working conditions. Lion claimed the worker’s conduct was so offensive that the firing was warranted, but the board disagreed and ordered the company to reinstate him.
The only Republican on the board, Marvin Kaplan, said in dissent that the General Motors ruling had struck an appropriate balance between workers’ rights to organize and to be free of a hostile work environment.
If you have questions regarding this or any other matter, please contact Dean Leazenby at Warrick & Boyn, LLP.