NLRB Returns to Traditional Standard for Employee Misconduct


All Employers with Employees subject to NLRA


May 1, 2023


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Quick Look

  • When determining whether an employee should be disciplined for concerted activity, employers should focus on the severity of the misconduct and the context in which it took place.
  • Employees must be given some leeway for “impulsive behavior” while engaging in protected concerted activity, in order to protect their NLRA rights.


In collective cases of Lion Elastomers and United Steelworkers, the National Labor Relations Board (NLRB) stated that where an employee’s outburst is related to protected activity under Section 7 of the National Labor Relations Act (NLRA), the employer may not be able to terminate the employee. Specifically, the Board returned to the long-established “setting-specific” standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during activity otherwise protected by the NLRA.  The setting-specific standards focus on the severity of the employee’s misconduct and the context in which it took place.

There, an elected union representative employee had previously engaged in repeated use of “inflammatory and insulting language” in the workplace (e.g., accusing a manager of having amnesia while asking the same question three times, and saying “people in the position of leadership have no integrity”). The employee subsequently had a heated argument with his supervisor in a safety meeting when the employee was challenging whether working conditions were safe and asked about the new overtime policy. The conversation devolved into each asking if they were being called a liar. The employer advised that his behavior was inappropriate in that he was “visibly agitated and used an elevated, accusatory tone while addressing others in the meeting.” As a result of his behavior, the employee was given a Last Chance Agreement but refused to sign it, and he was ultimately terminated. Notably, this employee filed more union grievances than any other.

Originally, the NLRB found that the employee engaged in concerted activity when he had been called to a meeting for a discussion about the grievances he had filed on behalf of other employees and when he subsequently raised concerns about the employees’ working conditions in the safety meeting. Because his protected activity was a significant motivating factor in his discipline, that made the discipline unlawful.

In the course of an appeal, the NLRB had issued a new standard for evaluating employee conduct in General Motors LLC. Upon further review here, the NLRB overruled the General Motors LLC standard and returned to its previous traditional standard, upholding its original decision in this case. “Conduct occurring during the course of protected activity must be evaluated as part of that activity — not as if it occurred separately from it and in the ordinary workplace context.” The Board reaffirmed the concept that employees must be given some leeway for “impulsive behavior” while engaging in protected concerted activity, in order to protect their NLRA rights.


Action Items

  1. Review discipline for behavior occurring in the context of protected concerted activity with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase