NLRB’s New Standard On Discipline For Offensive Or Abusive Outbursts Suffers Serious Set Back

In May of 2023, we discussed the case of Lion Elastomers LLC where the National Labor Relations Board (NLRB or Board) changed the legal standard it uses to determine when an employee engaged in protected concerted activity loses the protection of the National Labor Relations Act due to conduct that is unprofessional, abusive, or profane. In this case, the Board ditched the employer-friendly standard from General Motors LLC adopted during the Trump administration, and returned to its prior, more restrictive standard from the case of Atlantic Steel. On July 9, 2024, the Fifth Circuit Court of Appeals vacated the Board’s decision in Lion Elastomers because the Board exceeded the scope of its remand and violated the employer’s due process rights. 

To understand this ruling, we must turn the clocks back and consider the beginning of this complicated case. In May 2020, the Board found that Lion Elastomers had committed an unfair labor practice by disciplining and discharging Joseph Colone for engaging in protected concerted activities. Colone was disciplined for being aggressive, hostile, and intimidating toward a manger during a safety meeting and toward an HR representative investigating his behavior. He was eventually discharged after repeatedly providing false information in support of multiple grievances. 

The employer appealed the Board’s finding to the Fifth Circuit Court of Appeals. While the appeal was pending, the Board issued its decision in General Motors (July 2020), changing the legal standard for determining when an employee, like Colone, engaged in protected concerted activity can be lawfully discharged or disciplined for abusive conduct. The Board asked the appeals court to remand the Lion Elastomers case so that the Board could determine whether the new General Motors standard changed its analysis for Colone’s discipline and discharge. The appeals court agreed and sent the case back to the NLRB.

The problem is the Board instead used the Lion Elastomers case to overrule General Motors and return to the Atlantic Steel standard – the same standard it originally applied to Colone’s conduct. The appeals court did not like this. It found that the Board exceeded the scope of its remand and engaged in a “bait-and-switch” by failing to use the remand for the reason it requested — to apply General Motors. The court further found that the Board violated the employer’s due process rights by denying it an opportunity to brief the issue of whether General Motors should be overturned. 

Given these findings, the appellate court has now vacated the Board’s decision in Lion Elastomers, which changed the standard, and ordered the Board to instead apply General Motors to the facts of Colone’s discipline and discharge.

While the court did not consider the merits of the different standards, in vacating the Board’s Lion Elastomers decision, it arguably eliminated the new standard. At the very least, the court’s decision gives employers serious procedural challenges to raise if the Board attempts to use its new standard in other cases. We will continue to monitor the Board’s activity as it may attempt to find another avenue for changing the law in this important area.  

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.