Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: Jeffrey S. Bosley
• Citation: Vol. 37 No. 4
• Publication year: 2023

NLRA CASE NOTES

AUTHORS^*

Jeffrey S. Bosley

Tyler Maffia

BOARD RESTORES "SETTING SPECIFIC" STANDARDS TO ANALYZE DISCIPLINE FOR MISCONDUCT DURING OTHERWISE PROTECTED ACTIVITY

Lion Elastomers LLC, 372 NLRB No. 83 (2023)

On remand from the United States Court of Appeal for the Fifth Circuit, a split 3-1 Board reversed General Motors LLC, 369 NLRB No. 127 (2020), and reinstated several long-standing "setting-specific" tests to determine whether allegedly "abusive conduct" occurring during otherwise protected activity remains protected by the Act.

In a May 29, 2020 decision, the Board held that the employee at issue did not lose the protection of the Act while raising concerns about working conditions to a safety manager during a safety meeting, and that the Employer violated Sections 8(a)(1) and 8(a)(3) of the Act by discharging him for conduct occurring at the safety meeting. While on appeal, the Board issued General Motors, and the Court of Appeal remanded the case to the Board to determine what impact, if any, that intervening decision had on the Board's decision in this case.

Chairman McFerran and Members Prouty and Wilcox held that General Motors should be reversed. The majority observed that "[n]o Federal appellate court has ever held that the Act prohibits the Board from adopting setting specific standards that, within limits, treat certain employee conduct as inseparable from the statutorily protected activity during which it occurs."¹ The majority then restored the three prior setting specific standards that General Motors had reversed: (1) the four factor test of Atlantic Steel, 245 NLRB 814 (1979), concerning outbursts towards management during protected activity; (2) the test concerning picket-line conduct set forth in Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984); and (3) the totality of circumstances test concerning social media posts and employee conversations set forth in Pier Sixty, LLC, 362 NLRB 505 (2015).

In support of its decision, the majority wrote that there is a "fundamental difference . . . between employee misconduct committed during Section 7 activity and misconduct during ordinary work."² Relying on the United States Supreme Court's decision in NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), the Board wrote that where employee conduct is protected by Section 7 of the Act, and misconduct is either disproven or insufficiently serious to justify discharge, the employer's good faith basis for taking an adverse employment action is immaterial. "Instead, the proper focus is on the employee's misconduct (or lack of it) and the predictable effect on the exercise of Section 7 rights if the employer were permitted to discipline or discharge the employee."³ Causation—i.e. the anti-union motive for the discipline—is immaterial. For this reason, the Board found that applying the Wright Line burden-shifting framework adopted by General Motors in such cases-which focuses on employer motivation-is not appropriate.

Dissenting, Member Kaplan disagreed that General Motors should be overturned, stating that the overruled precedent had not been given enough "time to prove its worth."⁴ Member Kaplan also disagreed that Burnup & Sims supported the majority's decision and opined that it should be limited to its facts. He also argued that the Wright Line burden-shifting test remained appropriate in these cases, especially when actual misconduct occurs. He criticized the majority's rejection of General Motors as putting employers in the position of continuing "to employ individuals who have engaged in such abusive conduct [that] any reasonable employer would have terminated them for that conduct."⁵ Member Kaplan finally raised concerns that the return to the prior standards gave insufficient consideration to compliance with anti-discrimination laws.

BOARD ADOPTS AND DETAILS EXPANDED REMEDIES FOR REPEATED VIOLATIONS OF THE NLRA

Noah's Ark Processors, LLC, 372 NLRB No. 80 (2023)

[Page 16]

In 2-1 decision, a three-member panel detailed expanded remedies available in cases involving employers who have shown "a proclivity to violate the Act or who have engaged in egregious or...